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Digitized  by  the  Internet  Archive 

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http://www.archive.org/details/argumentonquestiOOprrich 


ARGUMENT 


ON  THE  QUESTION  OF  THE  VALIDITY  OF 

THE  TREATY   OF  LIMITS   BETWEEN 

COSTA  RICA  AND  NICARAGUA 


AND 


OTHER  SUPPLEMENTARY  POINTS  CONNECTED  WITH  IT, 


SUBMITTED    TO    THE 


Arbitration  of  the  President  of  the  United  States  of  America, 


FILED  ON  BEHALF  OF  THE  GOVERNMENT  OF  COSTA  RICA 


BY 


PEDRO  PEREZ  ZELEDOK 


Its  Envoy  Extraordinaby  and  Minister  Plenipotentiaby 
IN  THE  United  States, 

(Translated  into  English  by  J.  L  Rodriguez.) 


WASHINGTON  : 

Gibson  Bros.,  Printees  and  Bookbinders. 

1887. 


31  Ts 


Bancroft  Library 

10,  ;4/ 


.CONTENTS. 


ANTECEDENTS. 

Treaty  of  Guatemala  establishing  the  basis  of  the  arbitration        .       5 
Points  which,  according  to  the  Government  of  Nicaragua,  are 
doubtful  and  require  interpretation,  .....       9 

INTRODUCTION, 15 

FIRST  PART. — HiSTOEicAL  Preliminaries. 

Chapter  I. 

Nicoya ;  its  annexation  to  Costa  Rica, 21 

Chapter  II. 

The  San  Juan  river  during  the  Spanish  rule,  .         .         .         .80 

Chapter  III. 

The  San  Juan  river  from  1821  to  the  date  of  the  treaty  of  1858,    .     38 

Chapter  IV.  . 

Negotiations  for  the  settlement  of  the  question  of  limits  from  the 
dissolution  of  the  Republic  of  Central  America  to  the  year  1858,     45 

Chapter  V. 

Continuation  of  the  subject  of  the  foregoing  chapter,    .         .        .51 

SECOND  PART. — Elucidation  of  the  Principal  Point. 
Chapter  I. 

Exposition  of  the  arguments  made  by  Nicaragua  in  support  of 
the  idea  that  the  treaty  of  1858  is  not  valid,        .         .         .         .61 

Chapter  II. 

The  treaty  of  limits  was  not  made  under  the  sway  of  any  consti- 
tution, but  under  a  Government  temporarily  endowed  with  un- 
limited powers, 65 

Chapter  III. 

The  consideration  of  the  exceptional  regime  existing  in  Nicaragua 
in  1858  continued, 70 

Chapter  TV. 

The  treaty  of  limits  does  not  imply  any  reform  or  amendment  of 
the  Nicaraguan  Constitution  of  1838, 77 

Chapter  V. 

The  treaty  of  limits  was  ratified,  not  once  or  twice,  but  on  several 
Repeated  occasions  by  the  Nicaraguan  Legislatures,  .         .         .     82 


IV 

PAGE. 

Chapter  VI. 

The  public  law  of  Nicaragua  recognizes  the  principle  that  the 
Republic  is  bound  by  an  international  treaty  whatever  the  im- 
portance thereof  may  be, 89 

Chapter  VII. 

The  whole  of  the  present  controversy  rests  substantially  upon  the 
use  of  a  certain  word. — Validity  of  the  treaty  in  good  faith,      .     93 

Chapter  VIII. 

Repeated  acknowledgments  of  the  validity  of  the  treaty  by  dif- 
ferent Nicaraguan  administrations, 97 

Chapter  IX. 

Costa  Rica  has  never  admitted  that  the  treaty  of  limits  required 
for  its  validity  further  ratifications, 104 

Chapter  X. 

The  second  alleged  cause  of  the  nullity  of  the  treaty  of  limits, 
which  is  the  want  of  ratification  by  Salvador,  examined  in  gen- 
eral,       108 

Chapter  XI. 

Whether  the  treaty  of  1858  was,  or  was  not,  the  result  of  violence 
used  against  Nicaragua  by  the  Administration  of  Don  Juan 
Rafael  Mora,  President  of  Costa  Rica, Ill 

Chapter  XII. 

The  Government  of  Salvador  was  not  an  essential  party  to  the 
treaty  of  limits,  115 

Chapter  XIII. 

The  Government  of  Salvador  was,  primarily,  a  fraternal  mediator, 
and  subsequently,  and  in  regard  to  only  one  secondary  clause 
of  the  treaty,  guaranteeing  party  of  the  execution  of  the  said 
clause, 120 

Chapter  XIV. 

The  guarantee  cannot  be  construed  as  a  condition  of  the  treaty,    .  127 
Chapter  XV. 

Examination  of  the  latter  reasons  alleged  by  Nicaragua  in  support 
of  her  theory  that  the  treaty  of  limits  is  invalid,        .         ,         .134 

THIRD  PART. — Answer  to  the  questions  propounded  by  Nic- 
aragua IN  REGARD  TO  THE  RIGHT  CONSTRUCTION  OF  THE 
TREATY  OF  LIMITS.  ^ 

Chapter  I. 

Whether  the  starting-point  of  the  border  line  is  movable  as  the 
waters  of  the  river,  or  whether  the  Colorado  river  is  the  limit 


of  Nicaragua,  and  whether  the  waters  of  the  San  Juan  river 
can  be  deviated  without  the  consent  of  Costa  Bica,  .         .   139 

Chapter  II. 

Whether  men-of-war  or  revenue  cutters  of  Costa  Rica  can  navi- 
gate on  the  San  Juan  river, 155 

Chapter  III. 

Whether  Costa  Rica  is  bound  to  co-operate  in  the  preservation 
and  improvement  of  the  San  Juan  river  and  the  Bay  of  San 
Juan,  and  in  what  manner :  and  whether  Nicaragua  can  under- 
take any  work  without  considering  the  injury  which  may  result 
to  Costa  Rica, 162 

Chapter  IV. 

W^hich  is  the  centre  of  the  Salinas  Bay  ? — Is  Costa  Rica  a  party  to 
the  grants  of  interoceanic  canal  which  Nicaragua  might  make  ? 
What  are,  in  this  respect,  the  rights  of  Costa  Rica  ?  .         .  169 

CONCLUSION,  179 

DOCUMENTS. 

No.  1. 

Treaty  of  limits  between  Costa  Rica  and  Nicaragua  concluded 

April  15,  1858, 185 

No.  2. 

Decree  of  the  Federal  Congress  of  Central  America  in  1825  ap- 
proving the  annexation  of  Nicoya  to  Costa  Rica,        .         .         .  192 
No.  3. 

The  state  of  things  existing  at  the  time  of  the  labors  of  the  Con- 
stituent Assembly  is  declared  to  be  an  extraordinary  regime, 
wherein  the  constitutional  rules  in  force  under  regular  circum- 
stances could  be  laid  aside, 193 

No.  4. 

Communication  from  the  Costa  Rican  Secretary  of  State. — It 
shows  the  ardent  desire  of  Costa  Rica  to  settle  finally,  and  for- 
ever, the  questions  pending  between  it  and  Nicaragua,  even  at 
the  sacrifice  of  its  own  rights  and  its  national  pride,         .         .    195 

No.  5. 

Communication  showing  the  spirit  of  conciliation  and  fraternity 
which  prevailed  in  the  making  of  the  treaty  of  limits.  — The 
limits  between  Nicaragua  and  Costa  Rica  are,  more  than  any- 
thing else,  internal  or  domestic  jurisdictional  boundaries,  .  197 
No.  6. 

Congratulation  by  the  United  States  Minister  for  the  near  settle- 
ment of  the  differences  between  Costa  Rica  and  Nicaragua. — 


VI 

PAGE. 

Speech  of  Gen.  Mirabeau  B.  Lamar,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  the  United  States  in  Nicaragua,       .  199 
No.  7. 

Note  of  the  Costa  Bican  Secretary  of  State  showing  the  peaceful 
disposition  of  Costa  Rica  in  regard  to  the  question  of  limits,     .  300 
No.  8. 

Communication  from  the  Secretary  of  State  of  Costa  Eica  show- 
ing that  the  initiation  of  the  treaty  of  1858  was  due  to  the 
friendly  mediation  of  the  Government  of  Salvador  and  to  over- 
tures made  by  Nicaragua  subsequent  to  the  repudiation  made 
by  the  latter  of  the  treaty  of  1858,  which  Costa  Eica  had  ap- 
proved of, 202 

No.  9. 

Act  of  exchange  of  the  ratifications  of  the  treaty  of  limits,    .         .  204 

No.  10. 

Editorial  of  the  official  newspaper  of  Nicaragua  on  the  conclu- 
sion of  the  treaty. — It  shows  the  spirit  of  conciliation  and  fra- 
ternity of    Costa  Eica  and  Nicaragua. — Thanks  given  to  the 
Government  of  Salvador  for  its  friendly  mediation,    .        .        .  205 
No.  11. 

Leave-taking  of  President  Mora, 207 

No.  12. 

Leave-taking  of  Senor  Negrete, 209 

No.  13. 

Answer  to  the  letter  of  leave-taking  of  Col.  Negrete. — He  is  called 
Apostle  of  Peace. — Solemn  and  effusive  expression  of  gratitude 
tendered  to  Salvador, 211 

No.  14. 

Editorial  of  the  "  Gaceia  de  Nicaragua  "  subsequent  to  the  offi- 
cial leave-taking  of  Senores  Don  Juan  Rafael  Mora  and  Col.  Ne- 
grete.—The  latter  is  promoted  to  the  rank  of  General  as  a  re- 
ward for  his  services.— The  Nicaraguan  people  feel  jubilant  for 
the  friendly  relations  between  Costa  Eica  and  Nicaragua,  .  213 

No.  15. 

Spirit  of  concord  which  presided  over  the  treaty. — Evident  ne- 
cessity and  advisability  that  it  should  be  concluded. — Faculties 
of  the  Government  to  approve  it.— Final  character  of  the  treaty. 
—Identical  position  of  Costa  Eica  and  Nicaragua,      .         .         .  214 

No.  16. 

The  treaty  of  April  15,  1858,  is  communicated  to  the  friendly 
Governments  as  a  happy  termination  of  the  protracted  differ- 
ences between  Costa  Eica  and  Nicaragua, 217 


vu 


No.  17. 

Validity  of  the  Treaty, 220 

No.  18. 

The  Constitution  of  Nicaragua  declares  that  the  Nicaraguan  ter- 
ritory borders  on  the  south  by  the  Kepublic  of  Costa  Kica. — 
The  Treaty  of  Limits  is  raised  to  the  character  of  fundamental 

law, 222 

No.  19. 

The  value  and  force  of  the  Treaty  of  Limits  is  recognized,  and  one 
of  its  provisions  is  thus  carried  into  effect,  ....  223 

No.  20. 

Costa  Rica  is  recognized  as  a  party  to  the  contract  of  the  Intero- 
ceanic  Canal,  and  its  acquiescence  is  asked  to  make  certain  mod- 
ifications in  it, 224 

No.  21. 

Official  despatch  acknowledging  that  the  Nicaraguan  territory 
ends  at  the  Salinas  Bay  as  declared  by  the  Treaty  of  Limits  of 

1858, 226 

No.  22. 

The  Nicaraguan  Chambers  direct  Article  VIII  of  the  Treaty  of 
Limits  of  April  15,  1858,  to  be  complied  with,  and  the  Execu- 
tive Power  carries  their  decision  into  effect,       ....  227 
No.  23. 

Official  despatch  showing  the  validity  and  strength  of  the  Treaty 
of  Limits  and  the  execution  thereof  by  both  Republics,     .         .  228 

No.  24. 

Costa  Rica  a  party  to  the  contract  of  Interoceanic  Canal  ap- 
proves modifications  made  thereto, 229 

No.  25. 

Despatch  showing  the  validity  and  strength  of  the  Treaty  of  Lim- 
its, and  its  execution,  ........  230 

No.  26. 

The  Government  of  Nicaragua  asks  that  of  Costa  Rica  to  remove 
its  custom  officers  from  the  La  Flor  river,  its  former  frontier, 
to  the  new  limit  fixed  by  the  treaty  of  April  15,  1858,         .         .  231 
No.  27. 

The  Government  of  Costa  Rica  is  invited  to  assist  that  of  Nicara- 
gua in  improving  the  port  of  San  Juan  del  Norte,  almost  de- 
stroyed by  the  deviation  of  the  waters  of  the  San  Juan  river 

into  the  bed  of  the  Colorado  river, 233 

No.  28. 

Nicaragua  reminds  Costa  Rica  of  the  duty  imposed  upon  her  by 
the  treaty  of  April  15,  1858,  to  defend  her  frontiers  at  San  Juan 
and  the  Bolarios  Bay, 235 


vm 

PAGE. 

No.  29. 

Execution  of  the  Treaty  of  Limits, 237 

No.  30. 

The  Nicaraguan  Chambers  direct  the  Executive  to  comply  with 
Art.  VIII  of  the  Treaty  of  Limits  of  April  15,  1858,    .         .         .238 
No.  31. 

The  strict  compliance  with  the  Treaty  of  Limits  demonstrated. — 
The  Government  of  Costa  Eica  asks  the  rights  vested  in  it  by 
Article  VI  of  a  contract  of  transit  to  be  expressly  secured,         .  239 

No.  32. 

The  Government  of  Nicaragua  asks  for  some  forces  to  be  situ- 
ated at  Sarapiqui  (a  confluent  of  the  San  Juan  river,  on  the 

right  bank),  .         .        .        .        ! 242 

No.  33. 

The  Nicaraguan  Chambers  order  one  of  the  provisions  of  the 
Treaty  of  Limits  of  1858  to  be  complied  with,    ....  244 
No.  34. 

Validity  and  force  of  the  Treaty  of  Limits. — Costa  Kica  does  not 
accede  to  situate  forces  at  Sarapiqui  on  the  ground  that  it  is 

unnecessary, 245 

No.  35. 

Costa  Kica  protests  against  the  occupation  and  deterioration  of 

the  Colorado  river, 247 

No.  36. 

The  Government  of  Nicaragua  recognizes  that  the  Colorado  river 
and  its  mouth  are  in  Costa  Kican  territory  and  belong  to  Costa 
Rica,  and  cannot  be  closed  against  the  will  of  the  latter,   .         .  248 

No.  37. 

Nicaragua  recognizes  still  more  solemnly  that  the  Colorado  river 
and  the  right  bank  of  the  San  Juan  river  are  Costa  Rican  terri- 
tory,     250 

No.  38. 

The  Minister  of  Nicaragua  in  Washington  solemnly  declares  be- 
fore the  American  Government  that  the  Republic  of  Costa  Rica 
borders  on  the  interior  waters  of  Nicaragua,  and  that  its  flag  is 
the  only  one  which,  in  union  with  the  Nicaraguan  flag,  can 

float  on  said  waters, 251 

No.  39. 

The  Government  of  Nicaragua  approves  the  declaration  of  its 
Minister  at  Washington,  and  commends  him  for  his  zeal  and 

fidelity,        .         .         . 252 

No.  40. 

The  action  of  Don  Luis  Molina,  Minister  of  Nicaragua  in  Wash- 
ington, is  approved  and  commended. — Executive  order  reward- 


IX 

PAGK. 

ing  the  important  services  of  Don  Luis  Molina,  Minister  Pleni- 
potentiary of  Nicaragua  in  the  United  States,  and  Mr.  Mande- 
ville  Carlisle  and  Don  Fernando  Guzman,  ....  253 

No.  41. 

Validity  and  strength  of  the  treaty  of  April  15,  1858,    .        .         .254 
No.'  42. 

Validity  and  strength  of  the  Treaty  of  Limits,        .         .        .  256 

No.  43. 

The  Government  of  Costa  Rica  orders  an  exploration  to  be  made 
of  its  lands  bordering  on  the  San  Juan  river,      .         ,         .         .  257 
No.  44. 

New  expeditions  to  the  banks  of  the  San  Juan  river,     .         .         .  258 
No.  45. 

Nicaragua  acknowledges  that  Costa  Rica  borders  on  the  San  Juan 

river, 259 

No.  46. 

Nicaragua  promises  that  the  interests  of  Costa  Rica  will  be  re- 
spected, and  that  its  rights  will  suffer  no  detriment,  .         .  260 
No.  47. 

Costa  Rica  protests  against  the  deviation  of  the  waters  of  the  Col- 
orado river  belonging  to  that  Republic, 261 

No.  48. 

Despatch  stating  that  a  sanitary  cordon  of  Costa  Rica  has  tres- 
passed on  the  Nicaraguan  frontier  as  established  by  the  treaty 
of  1858, 262 

No.  49. 

Nicaragua  asks  that  a  sanitary  cordon  be  moved  back  to  the  fron- 
tier established  by  the  treaty  of  1858, 263 

No.  50. 

The  Government  of  Costa  Rica  consents  to  move  back  its  sanitary 
cordon  to  a  point  indisputably  located  within  the  limits  estab- 
lished by  the  treaty  of  April  15,  1858, 264 

No.  51. 

Costa  Rica  shows  her  disposition  to  enter  into  arrangements  with 
Nicaragua  to  determine  by  mutual  agreement  what  should  be 
done  in  regard  to  communications  on  the  Atlantic  side,      .         .  265 

No.  52. 

Contract  Ay6n-Chevalier. — Costa  Rica  is  an  essential  party  to  the 
interoceanic  canal. — The  contract  will  be  void  if  Costa  Rica 
does  not  accept  it. — Costa  Rica  will  be  invited  to  make  in  favor 
of  the  grantee  such  concessions  in  the  Costa  Rican  territory  as 
Nicaragua  makes  in  her  own,       .......  266 


No.  53. 

Editorial  of  the  Nicaraguan  "Gaceta"  on  the  Ay6n-Chevalier 
canal  contract. — The  San  Juan  river  explicitly  declared  to  be 
(1869)  in  great  part  the  frontier  of  Costa  Rica. — The  adherence 
of  Costa  Rica  to  the  contract  recognized  to  be  indispensable. — 
Costa  Rica  is  asked  to  grant  in  her  territory  what  Nicaragua  has 
granted  in  hers. — All  of  this  presupposes  the  acknowledged  va- 
lidity of  the  Treaty  of  Limits, 268 

No.  54. 

The  Grovernment  of  Nicaragua  asks  the  Government  of  Costa 
Rica  to  request  the  National  Constituent  Convention  to  mod- 
ify certain  articles  of  a  treaty  between  the  two  Republics  for 
the  digging  of  an  interoceanic  canal, 270 

No.  55. 

Project  of  a  road  from  San  Joso  de  Costa  Rica  to  San  Carlos  for 
the  export  of  coffee  through  San  Juan  del  Norte.  — Costa  Rica 
earnestly  invited  to  co-operate  in  the  restoration  of  the  port  of 
San  Juan  by  uniting  the  waters  of  the  Colorado  river  with  those 
of  the  San  Juan  river, 271 

No.  56. 

Remarks  made  by  the  Government  of  Costa  Rica  to  the  Govern- 
ment of  Nicaragua  when  the  latter  submitted  to  the  Nicaraguan 
Congress  its  so-called  doubts  in  regard  to  the  validity  of  the 
Treaty  of  Limits  of  1858, 274 

No.  57. 

Remarks  of  the  Government  of  Costa  Rica  in  refutation  of  the 
doubts  entertained  by  the  Government  of  Nicaragua  on  the 
validity  of  the  Treaty  of  Limits, 279 

No.  58. 

Costa  Rica  declares  that  it  will  keep  its  custom-houses  and  main- 
tain its  sovereignty  over  the  whole  territory  which,  according  to 
the  treaty  of  1858,  belongs  to  it  unless  other  limits  are  not  es- 
tablished by  mutual  agreement  or  arbitral  decision,  .         .         .  290 

No.  59. 

Costa  Rica  protests  against  the  non-compliance  on  the  part  of 
Nicaragua  of  Article  VIII  of  the  Treaty  of  Limits,     .         .         .  291 

No.  60. 

The  exj)lanations  of  Nicaragua  as  to  the  non-compliance  with 
Article  VIII  of  the  Treaty  of  Limits  are  accepted,     .         .         .  294 

No.  61. 

Opinion  of  the  historian  of  Central  America,  Dr.  Don  Lorenzo 
Montufar,  at  present  the  Secretary  of  State  of  the  Republic  of 
Guatemala,  in  regard  to  the  Treaty  of  Limits  between  Costa 
Rica  and  Nicaragua, 296 


XI 


No.  62. 

Extracts  from  the  "  History  of  Nicaragua  from  the  Eemotest 
Times  to  the  year  1852,"  written  by  order  of  General  Don 
Joaquin  Zavala,  President  of  the  Republic,  by  Senor  Dr.  Don 
Tomas  Ay  on.  Vol.  I.  Granada  :  Printing  office  of  El  Centre 
Americano,  1882. — The  author  of  said  history  gives  the  name 
of  Desaguadero  to  the  San  Juan  de  Nicaragua  river,  .        .  305 

No.  63. 

Organic  laws  of  Costa  Rica  in  regard  to  limits  with  Nicaragua,     .  308 
No.  64. 

Failure  of  Canal  Negotiations  with  the  Government  of  the  United 
States  owing  to  the  fact  that  Nicaragua  refused  Costa  Rica  in- 
tervention in  it, 316 


ANTECEDENTS 


ANTECEDENTS. 


Legation  of  Costa  Eica, 
Washington,  D.  C,  July  30,  1887. 

Sir  :  I  have  the  honor  to  enclose  a  copy  of  the  treaty  signed 
at  the  city  of  Guatemala  on  the  24th  of  December,  1886,  by 
plenipotentiaries  of  Costa  Kica  and  Nicaragua  with  the  friendly 
mediation  of  the  Guatemalan  Government,  in  which  it  was 
stipulated  that  both  contracting  parties  should  submit  to  the 
arbitration  of  the  President  of  the  United  States  of  America 
the  question  whether  the  treaty  of  limits  celebrated  by  them 
on  the  15th  of  April,  1858,  is  or  is  not  valid. 

In  the  name  and  under  special  instructions  of  the  Govern- 
ment of  Costa  Eica  I  request  you  to  interpose  your  good  and 
valuable  offices  with  His  Excellency  the  President  in  order 
that  he  may  consent  to  render  to  my  country  the  eminent  ser- 
vice above  referred  to. 

My  Government  hopes  that  such  a  marked  favor  will  be 
obtained  by  it,  and  grounds  its  expectations  upon  the  benevo- 
lent friendship  shown  to  it  by  your  Government  and  on  the 
traditional  interest  that  this  great  nation  has  always  felt  for 
the  peace,  tranquility,  and  welfare  of  the  other  nations  of 
America  which  are  its  sisters. 

With  protestations  of  my  highest  consideration,  I  am,  your 
most  obedient  servant, 

PEDEO  PEEEZ  Z. 

To  the  Honorable  Thomas  F.  Bayard, 

Secretary  of  State ^  <&c.^  c&c,  dec.  _ 


Legation  of  Costa  Eica, 
Washington,  D.  C,  July  31,  1887. 

Sir  :  I  have  been  favored  by  your  estimable  communica- 
tion, dated  yesterday,  in  which  you  were  pleased  to  inform 
me  that  His  Excellency  the  President  has  been  pleased  to 
consent  to  be  arbitrator  to  decide  the  controversy  between 
Costa  Kica  and  Nicaragua  on  the  validity  or  invalidity  of  the 
treaty  of  April  15,  1858,  celebrated  by  the  two  Republics  for 
the  final  settlement  of  their  questions  about  territorial  limits. 

It  is  with  great  satisfaction  that  I  have  received  this  pleas- 
ant information,  which  I  hastened  to  transmit  by  cable  to  my 
Government.  Indeed,  I  never  apprehended  that  the  illus- 
trious Chief  Magistrate  of  this  great  nation  would  refuse 
Costa  Rica  the  inestimable  service  of  adjusting  its  differences 
with  its  neighboring  sister,  the  Republic  of  Nicaragua. 

I  comply  with  a  very  gratif3dng  duty  in  giving  to  His 
Excellency  the  President  and  to  you  yourself,  for  your  own 
part  in  the  premises,  my  most  expressive  thanks  for  this  new 
testimony  of  friendship  given  to  my  Government.  And  in 
so  doing  I  comply,  also,  with  special  recommendations  of 
my  Government. 

I  shall  have  the  honor  to  submit  to  the  high  consideration 
of  His  Excellency  the  President,  within  the  period  marked  by 
the  treaty,  the  grounds  and  reasons  which,  in  the  opinion  of 
the  Government  of  Costa  Rica,  rendered  the  validity  of  the 
treaty  of  1858  evident  and  irrefutable. 

With  feelings  of  high  esteem,  I  am,  your  very  obedient 
servant, 

PEDRO  PEREZ  Z. 

To  the  Hon.  Thomas  F.  Bayard, 

Secretary  of  State,  <&c.,  cfcc,  dbc. 


Treaty   of    Guatemala    Establishing    the    Basis    of    the 

Arbitration. 

Convention  between  the  Govern7nents  of  Nicaragua  and  Costa 
Bica  to  suhmit  to  the  arbitration  of  the  Government  of  the 
United  States  the  question  in  regard  to  the  validity  of  the 
treaty  of  15  April,  1858. 

The  Governments  of  tlie  Republics  of  Nicaragua  and  Costa 
Rica  desiring  to  terminate  the  question  debated  by  them  since 
1871,  to  wit: 

Whether  the  treaty,  signed  by  both  on  the  15th  day  of 
April,  1858,  is  or  is  not  valid,  have  named,  respectively,  as 
plenipotentiaries,  Senor  Don  Jose  Antonio  Roman,  envoy 
extraordinary  and  minister  plenipotentiary  of  Nicaragua,  near 
the  Government  of  Guatemala,  and  Senor  Don  Ascension 
Esquivel,  envoy  extraordinary  and  minister  plenipotentiary 
of  Costa  Rica,  near  the  same  Government,  who  having  com- 
municated their  full  powers,  found  to  be  in  due  form,  and 
conferred  with  each  other,  with  the  mediation  of  the  minister 
for  foreign  affairs  for  the  Republic  of  Guatemala,  Doctor  Don 
Fernando  Cruz,  designated  to  interpose  the  good  offices  of 
his  Government,  generously  offered  to  the  contending  par- 
ties and  by  them  gratefully  accepted,  have  agreed  to  the  fol- 
lowing articles : 

(1)  The  question  pending  between  the  contracting  Govern- 
ments, in  regard  to  the  validity  of  the  treaty  of  limits  of  the 
15th  of  April,  1858,  shall  be  submitted  to  arbitration. 

(2)  The  arbitrator  of  that  question  shall  be  the  President 
of  the  United  States  of  America.  Within  sixty  days  follow- 
ing the  exchange  of  ratifications  of  the  present  convention, 
the  contracting  Governments  shall  solicit  of  the  appointed 
arbitrator  his  acceptance  of  the  charge. 


(B)  In  the  unexpected  event  that  the  President  of  the 
United  States  should  not  be  pleased  to  accept,  the  parties 
shall  name,  as  arbitrator,  the  President  of  the  Kepublic  of 
Chili,  whose  acceptance  shall  be  solicited  by  the  contracting 
Governments  within  ninety  days  from  the  date  upon  which 
the  President  of  the  United  States  may  give  notice  to  both 
Governments,  or  to  their  representatives  in  Washington,  of 
his  declination. 

(4)  If,  unfortunately,  the  President  of  Chili  should  also  be 
unable  to  lend  to  the  parties  the  eminent  service  of  accepting 
the  charge,  both  Governments  shall  come  to  an  agreement 
for  the  purpose  of  electing  two  other  arbitrators  within  ninety 
days,  counting  from  the  day  on  which  the  President  of  Chili 
may  give  notice  to  both  Governments  or  their  representatives, 
in  Santiago,  of  his  non-acceptance. 

(5)  The  proceedings  and  terms  to  which  the  decisions  of 
the  arbitrator  are  limited  shall  be  the  following : 

Within  ninety  days,  counting  from  the  notification  to  the 
parties  of  the  acceptance  of  the  arbitrator,  the  parties  shall 
present  to  him  their  allegations  and  documents.  The  arbi- 
trator will  communicate  to  the  representative  of  each  Govern- 
ment, within  eight  days  after  their  presentation,  the  allega- 
tions of  the  opposing  party,  in  order  that  the  opposing 
party  may  be  able  to  answer  them  within  the  thirty  days 
following  that  upon  which  the  same  shall  have  been  communi- 
cated. 

The  arbitrator's  decision,  to  be  held  valid,  must  be  pro- 
nounced within  six  months,  counting  from  the  date  upon 
which  the  term  allowed  for  the  answers  to  the  allegations 
shall  have  expired,  whether  the  same  shaU  or  shall  not  have 
been  presented. 

The  arbitrator  may  delegate  his  powers,  provided  that  he 
does  not  fail  to  intervene  directly  in  the  pronunciation  of  the 
final  decision. 


(6)  If  the  arbitrator's  award  should  determine  that  the 
treaty  is  valid,  the  same  award  shall  also  declare  whether 
Costa  Rica  has  the  right  of  navigation  of  the  river  San  Juan 
with  vessels  of  war  or  of  the  revenue  service.  In  the  same 
manner  he  shall  decide,  in  case  of  the  validity  of  the  treaty, 
upon  all  the  other  points  of  doubtful  interpretation  which 
either  of  the  parties  may  find  in  the  treaty,  and  shall  com- 
municate to  the  other  party  within  thirty  days  after  the  ex- 
change of  the  ratifications  of  the  present  convention. 

(7)  The  decision  of  the  arbitrator,  whichsoever  it  may  be, 
shall  be  held  as  a  perfect  treaty  and  binding  between  the  con- 
tracting parties.  No  recourse  whatever  shall  be  admitted,  and 
it  shall  begin  to  have  effect  thirty  days  after  it  shall  have  been 
notified  to  both  Governments  or  to  their  representatives. 

(8)  If  the  invalidity  of  the  treaty  should  be  declared,  both 
Governments,  within  one  year,  counting  from  the  notification 
of  the  award  of  the  arbitrator,  shall  come  to  an  agreement  to 
fix  the  dividing  line  between  their  respective  territories.  If 
that  agreement  should  not  be  possible,  they  shall,  in  the  fol- 
lowing year,  enter  into  a  convention  to  submit  the  question 
of  boundaries  between  the  two  Republics  to  the  decision  of 
a  friendly  Government. 

From  the  time  the  treaty  shall  be  declared  null,  and  during 
the  time  there  may  be  no  agreement  between  the  parties,  or 
no  decision  given  fixing  difinitely  the  rights  of  both  countries, 
the  rights  established  by  the  treaty  of  the  15th  of  April,  1858, 
shall  be  provisionally  respected. 

(9)  As  long  as  the  question  as  to  the  validity  of  the  treaty 
is  not  decided,  the  Government  of  Costa  Rica  consents  to 
suspend  the  observance  of  the  decree  of  the  16th  of  March 
last  as  regards  the  navigation  of  the  river  San  Juan  by  a  na- 
tional vessel. 

(10)  In  case  the  award  of  the  arbitrators  should  decide 
that  the  treaty  of  limits  is  valid,  the  contracting  Govern- 


ments,  within  ninety  days  following  that  upon  which  they 
may  be  notified  of  the  decision,  shall  appoint  four  commis- 
sioners, two  each,  who  shall  make  the  corresponding  meas- 
urements of  the  dividing  line,  as  provided  for  by  Article  2 
of  the  referred  to  treaty  of  15th  April,  1858. 

These  measurements  and  the  corresponding  landmarks  shall 
be  made  within  thirty  months,  counting  from  the  day  upon 
which  the  commissioners  shall  be  appointed.  The  commis- 
sioners shall  have  the  power  to  deviate  the  distance  of  one 
mile  from  the  line  fixed  by  the  treaty,  for  the  purpose  of  find- 
ing natural  limits  or  others  more  distinguishable.  But  this 
deviation  shall  be  made  only  when  all  of  the  commissioners 
shall  have  agreed  upon  the  point  or  points  that  are  to  sub- 
stitute the  line. 

(11)  This  treaty  shall  be  submitted  to  the  approval  of  the 
Executive  and  Congress  of  each  of  the  contracting  Repub- 
lics, and  their  ratifications  shall  be  exchanged  at  Managua 
or  San  Jose  de  Costa  Rica  on  the  30th  of  June  next,  or 
sooner  if  possible. 

In  testimony  of  which  the  plenipotentiaries  and  the  min- 
ister of  foreign  affairs  of  Guatemala  have  hereunto  signed 
and  sealed  with  their  private  seals,  in  the  city  of  Guatemala, 
this  24th  day  of  December,  1886. 

ASCENSION  ESQUIVEL. 

J.  ANTONIO  ROMAN. 

FERNANDO  CRUZ. 


Points  Which,  According  to  the  Government  of  Nicaragua, 
ARE  Doubtful  and  Require  Interpretation. 

Department  of 
Foreign  Relations  of  Nicaragua, 

Managua,  June  22,  1887. 
Sir  :  By  order  of  the  President  and  in  pursuance  of  Arti- 
cle VI  of  the  Convention  of  Arbitration,  concluded  at  Guate- 
mala, between  Costa  Rica  and  Nicaragua,  I  have  the  honor 
to  communicate  to  the  Government  of  Your  Excellency  the 
points  of  doubtful  interpretation  found  in  the  treaty  of  April 
15,  1858,  which,  in  the  event  foreseen  by  that  Article,  this 
Government  proposes  to  submit  to  the  decision  of  the  arbi- 
trator. 

first. 

1.  Punta  de  Castilla  point  having  been  designated  as  the 
beginning  of  the  border  line  on  the  Atlantic  side,  and  finding 
itself,  according  to  the  same  treaty,  at  the  mouth  of  the  San 
Juan  river  ;  now  that  the  mouth  of  the  river  has  been  changed, 
from  where  shall  the  boundary  start  ? 

2.  How  shaU  the  central  point  of  the  Salinas  Bay,  which 
is  the  other  end  of  the  dividing  line,  be  fixed  ? 

3.  Whether  by  that  central  point  we  are  to  understand 
the  centre  of  the  figure ;  and,  as  it  is  necessary  for  its  deter- 
mination to  fix  the  limit  of  the  Bay  towards  the  ocean,  what 
shall  that  limit  be  ? 

second. 

4.  Nicaragua  consented,  by  Article  lY,  that  the  Bay  of 
San  Juan,  which  always  exclusively  belonged  to  her  and 
over  which  she   exercised  exclusive  jurisdiction,  should  be 


10 

common  to  both  Republics ;  and  by  Article  VI  she  consented, 
also,  that  Costa  Rica  should  have,  in  the  waters  of  the  river, 
from  its  mouth  on  the  Atlantic  up  to  three  English  miles 
before  reaching  Castillo  Yiejo,  the  perpetual  right  of  free 
navigation  for  purposes  of  commerce.  Is  Costa  Rica  bound 
to  concur  with  Nicaragua  in  the  expense  necessary  to  pre- 
vent the  Bay  from  being  obstructed,  to  keep  the  navigation 
of  the  river  and  port  free  and  unembarrassed,  and  to  improve 
it  for  the  common  benefit  ?     If  so, 

5.  In  what  proportion  must  Costa  Rica  contribute  ?  In 
case  she  has  to  contribute  nothing — 

6.  Can  Costa  Rica  prevent  Nicaragua  from  executing,  at 
her  own  expense,  the  works  of  improvement  ?  Or,  shall  she 
have  any  right  to  demand  indemnification  for  the  places 
belonging  to  her  on  the  right  bank,  which  may  be  necessary 
to  occupy,  or  for  the  lands  on  the  same  bank  which  may  be 
flooded  or  damaged  in  any  other  way  in  consequence  of  the 
said  works  ? 

THIRD. 

7.  If,  in  view  of  Article  V  of  the  treaty,  the  branch  of  the 
San  Juan  river  known  as  the  Colorado  river  must  be  consid- 
ered as  the  limit  between  Nicaragua  and  Costa  Rica,  from 
its  origin  to  its  mouth  on  the  Atlantic  ? 

FOURTH. 

8.  If  Costa  Rica,  who,  according  to  Article  VI  of  the 
treaty,  has  only  the  right  of  free  navigation  for  the  purposes 
of  commerce  in  the  waters  of  the  San  Juan  river,  can  also 
navigate  with  men-of-war  or  revenue  cutters  in  the  same 
waters  ? 

FIFTH. 

9.  The  eminent  domain  over  the  San  Juan  river  from  its 
origin  in  the  Lake  and  down  to  its  mouth  on  the  Atlantic, 


11 

belonging  to  Nicaragua  according  to  the  text  of  the  treaty, 
can  Costa  Eica  reasonably  deny  her  the  right  of  deviating 
those  waters  ? 

SIXTH. 

10.  If,  considering  that  the  reasons  of  the  stipulation  con- 
tained in  Article  VIII  of  the  treaty  have  disappeared,  does 
Nicaragua,  nevertheless,  remain  bound  not  to  make  any  grants 
for  canal  purposes  across  her  territory  without  first  asking 
the  opinion  of  Costa  Rica,  as  therein  provided  ?  Which  are, 
in  this  respect,  the  natural  rights  of  Costa  Bica  alluded  to 
by  this  stipulation,  and  in  what  cases  must  they  be  deemed 
injured  ? 

SEVENTH. 

11.  Whether  the  treaty  of  April  15,  1858,  gives  Costa  Rica 
any  right  to  be  a  party  to  the  grants  of  inter-oceanic  canal 
which  Nicaragua  may  make,  or  to  share  the  profits  that  Nic- 
aragua should  reserve  for  herself  as  sovereign  of  the  territory 
and  waters,  and  in  compensation  of  the  valuable  favors  and 
privileges  she  may  have  conceded  ? 

In  transmitting  the  above  to  Your  Excellency,  and  request- 
ing Your  Excellency  to  acknowledge  the  receipt  thereof,  it  is 
pleasing  to  me  to  reiterate  the  assurances  of  my  respect  and 
consideration. 

FERNANDO  GUZMAN. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Government  of  Costa  Rica. 


INTRODUCTION. 


INTEODUCTION. 


What  is  the  question  submitted  by  the  Kepublics  of  Costa 
Kica  and  Nicaragua  to  the  impartial  and  final  decision  of  the 
President  of  the  United  States  of  America  ? 

It  is  simply : 

Whether  the  treaty  of  limits  concluded  by  both  Kepublics 
at  San  Jos^  of  Costa  Kica  on  the  15th  day  of  April,  1858,  is 
or  is  not  valid  ? 

This,  and  nothing  else,  forms  the  subject  of  the  debate. 

If,  as  I  confidently  hope,  the  question  is  decided  in  an 
affirmative  sense,  then  some  other  points,  of  secondary  or 
accessory  character,  depending  upon  the  subject-matter,  and 
referring  to  the  proper  construction  to  be  placed  upon  the 
treaty,  shall  be  also  considered. 

If,  on  the  contrary — what  in  my  judgment  is  little  less  than 
an  impossibility — the  question  is  decided  in  a  negative  sense, 
then  the  discussion  about  limits,  which  was  closed  and  dis- 
posed of  in  1858  by  the  treaty,  so  adjudged  to .  be  invalid, 
shall  be  reopened  and  restored  to  the  condition  in  which  it 
was  at  that  time ;  but  the  determination  of  the  boundaries 
between  the  two  Kepublics  will  not,  in  any  way  whatever, 
be  included  within  the  scope  of  the  arbitration.  This  im- 
portant subject  is  left  to  be  disposed  of  by  subsequent  nego- 
tiation between  the  two  Governments  ;  and  if  it  should  hap- 
pen that  no  agreement  can  be  reached  within  the  period  of 
one  year,  then  another  arbitration,  the  terms  of  which  will 
ihen  be  discussed  and  agreed  upon,  should  be  resorted  to 
to  settle  and  set  at  rest  the  dispute. 

These  are  substantially,  and  as  far  as  the  fixing  of  the  sub- 
ject of  the  controversy  is  concerned,  the  provisions  of  the 


16 

treaty  of  Guatemala  of  December  2,  1886,  which  established 
the  basis  of  the  present  arbitration. 

Under  these  circumstances  it  is  clear  that  I  must  not  oc- 
cupy myself  at  all,  unless  incidentally,  with  anything  which 
refers  to  limits  between  one  country  and  the  other,  because 
this  is  not,  by  any  means,  the  point  to  be  discussed  ;  and  that, 
therefore,  my  argument  must  be  directed  to  show  that  the 
treaty  of  April  15,  1858,  is  perfectly  valid;  that  it  cannot 
but  be  valid  in  the  light  of  international  law  ;  that  it  has 
been  always  recognized  as  valid  by  Costa  Rica  and  other 
nations  equally  friendly  to  the  two  neighboring  Republics  ; 
and  that  Nicaragua  herself,  for  many  years,  did  also  recog- 
nize its  validity. 

But,  in  order  to  illustrate  in  such  a  manner  as  is  desirable 
and  proper  this  only  subject  of  the  debate,  it  seems  to  me 
unavoidable  to  preface  my  work  by  some  historical  remarks 
and  refer  therein  to  the  ancient  boundaries  of  Costa  Rica, 
which  were  the  San  Juan  river  through  the  whole  of  its 
course,  the  great  Lake,  and  the  La  Flor  river.  But  this  I  will 
endeavor  to  do  as  briefly  and  concisely  as  permitted  by  the 
purpose  I  have  in  view,  which  is  to  show  how  far  Costa  Rica 
was  carried  by  its  spirit  of  conciliation  and  true  fraternity 
when  it  consented  to  the  treaty  of  1858,  which  deprived  her 
of  her  historical,  as  well  as  natural  and  legitimate,  bound- 
aries—thus leaving  beyond  a  doubt  that  if  Costa  Rica  has 
always  acted  with  proper  firmness  in  defending  and  asserting 
its  rights  in  regard  to  the  treaty  in  question,  it  is  not  because 
the  said  treaty  is  in  any  way  or  manner  whatsoever  advan- 
tageous to  Costa  Rica,  but  because  the  Costa  Rican  Govern- 
ment and  people  have  always  desired,  as  they  do  now  desire, 
that  a  perfect  international  agreement  be  respected  and  com- 
plied with. 

I  will,  therefore,  begin  by  making  a  statement  of  the  ques- 
tions which  the  treaty  of  limits,  now  under  discussion,  set  at 
rest  and  decided,  and  were,  on  the  one  side,  the  annexation 
to  Costa  Rica  of  the  Nicoya  district,  which  took  place  in 


17 

1824,  when  the  States  forming  the  Federal  Eepublic  of  Cen- 
tral America  were  organized  and  defined,  and  on  the  other 
side  the  different  claims  set  forth  by  both  bordering  nations 
on  the  outlet  (el  "  Desaguadero  ")  of  the  Lake  of  Nicaragua 
or  San  Juan  river.  Subsequently  I  will  explain  the  circum- 
stances which  preceded  the  treaty  of  1858.  And  then  I  will 
proceed  to  examine  and  refute  such  arguments  as  have  been 
made  by  Nicaragua  in  opposition  to  that  treaty  and  for  the 
purpose  of  invaUdating  or  rescinding  it. 
2 


FIRST   PART. 


FIKST  PART. 
HISTOKICAL  PKELIMINARIES. 


Chapter    I. 

NICOYA ITS   ANNEXATION    TO    COSTA   RICA. 

The  Province  of  Costa  Rica,  now  the  Republic  of  the  same 
name,  was  created  by  Emperor  Charles  Y  in  the  year  1540, 
under  the  name  of  "  Government  of  Cartago  or  Costa  Rica," 
in  that  part  of  the  Province  of  Veragua  which  the  Crown 
reserved  for  itself,  west  of  the  Dukedom  of  Veragua,  granted 
in  1537  to  the  descendants  of  Christopher  Columbus. 

The  limits  of  this  Government  extended  from  sea  to  sea  in 
latitude,  while  in  longitude  they  ran  along  the  Caribbean  Sea 
from  the  Zarabaro  or  Almirante  Bay  (Lake  of  Chiriqui)  to 
the  Rio  Grande  river,  now  called  Aguan  or  Roman  river,  west 
of  Cape  Camaron,  embracing  the  whole  Central  American 
littoral  between  the  9th  and  16th  parallels  of  north  latitude.  ^ 

This  demarcation  expressly  included  within  the  jurisdiction 
of  Costa  Rica,  and  as  a  principal  part  of  this  Province,  the 
territory  of  the  mouths  of  the  outlet  (Desaguadero),  or  San 
Juan  river,  and  a  great  part  of  its  course,  following  it  up  to 
within  fifteen  leagues  of  the  Lake  of  Nicaragua,  and  running 
from  there  toward  the  north,  always  at  a  distance  of  fifteen 
leagues  from  the  coast,  up  to  the  banks  of  the  Rio  Grande 
river.  Therefore  the  whole  of  the  Atlantic  coast  of  Nicaragua 
and  a  part  of  that  of  Honduras  belonged  to  Costa  Rica. 


^  Torres  de  Mendoza.  ' '  Coleccion  de  documentos  ineditos  de  Indias  puhli- 
Cdda  bajo  los  auspicios  del  Oohierno  EspaiioV 

Peralta.  "  Costa  Rica,  Nicaragua  y  Panama,  en  el  siglo  xvi,  Madrid, 
1883,"  pp.  101,  113,  741  to  754.  Leon  Fernandez.  *'  Coleccion^''  &c., 
vol.  iv,  p.  — . 


22 

Such  was  the  original  province  of  Costa  Eica. 

From  1560  to  1573  Phillip  II  gave  her  new  limits,  which, 
on  the  Atlantic  side,  were  the  same  now  claimed  by  this  Re- 
public. ^ 

The  province  of  Nicaragua  was  made  a  Government  and 
entrusted  to  the  command  of  Pedrarias  Davila  by  Royal  Let- 
ters-Patent of  June  1, 1527  ;  but  no  limits  were  then  assigned 
to  it,  nor  were  those  suggested  by  Pedrarias  approved  of  by 
the  Court.  According  to  Fernandez  de  Oviedo  those  limits 
extended  from  the  port  of  La  Herradura,  9°  38'  north  lati- 
tude, to  the  port  of  La  Posesion  (or  Realejo),  12°  30'  of  the 
same  latitude.  But  previous  to  1540  it  was  generally  thought 
that  the  limits  of  Nicaragua  were  from  the  Chiriqui  plains  to 
the  Gulf  of  Fonseca.  These  boundaries  gradually  became 
reduced  through  the  creation  of  the  new  provinces  of  Costa 
Rica  (on  the  side  of  the  Southern  Sea)  and  of  Nicoya,  which, 
from  the  condition  of  a  simple  "  encomienda "  granted  to 
Pedrarias  Davila  and  his  successor  and  son-in-law,  Rodrigo 
de  Contreras,  was  raised  to  the  station  of  an  independent 
Mayoralty  or  "  Corregimiento." 

On  the  side  of  the  Northern  Sea,  Nicaragua  did  not  pos- 
sess, before  1543,  an  inch  of  land. 

The  Province  of  Nicoya  consisted  of  the  peninsula  of  that 
name,  and  was  situated  between  the  Gulf  of  Nicoya  and  the 
Tempisque,  or  Del  Salto  river,  and  the  Pacific  Ocean,  ex- 
tending itself  towards  the  north  up  to  the  shores  of  the  Lake 
of  Nicaragua. 

Of  the  condition  of  Nicoya  as  an  independent  Mayoralty 
abundant  testimony  is  given  by  different  royal  ordinances 
and  by  the  chronicler  Antonio  de  Herrera,^  who  says  : 
"  The  following  mayoralties  are  provided  for  by  His  Majesty, 
namely :  El  Cuzco,  the  La  Plata  city,  and  the  mining  seat  of 
Potosi,   *    *    *    ^A^  Province  of  Nicoya,''^  &c. 


^Peralta.     ^^ Costa  Bica^  Nicaragua  y  Panamd,^^  &c.,  p.  500. 
*  Descrvpcion  de  las  Indias  Occidentales,  chap.  31. 


23 

Herrera  wrote  in  1 599,  or  thereabouts. 

The  "  Kecopilacion  "  of  laws  for  the  Indies  (Law  1,  Title  2, 
Book  5)  refers  to  the  District  of  Nicoya  as  being  an  "  Alcal^ 
dia  Mayor  "  or  district  under  the  jurisdiction  of  a  Judge  of 
first  instance,  it  being  equal  in  this  respect  to  Chiapas  and 
San  Salvador,  ancient  provinces  of  the  Captaincy-General  of 
Nicaragua,  which,  subsequent  to  their  emancipation  from 
Spain  in  1821,  freely  disposed  of  their  destinies,  Chiapas 
annexing  itself  to  Mexico,  and  San  Salvador  becoming  one  of 
the  five  States  of  the  Federal  Republic  of  Central  America. 
Nicoya  declared  her  will  to  be  incorporated  into  the  State  of 
Costa  Rica. 

The  final  incorporation  of  Nicoya  or  Guanacaste  into  Costa 
Rica,  which  took  place  in  1824,  has  several  historical  ante- 
cedents. 

Don  Antonio  Gonzalez,  President  of  the  "  Audiencia  "  or 
Superior  Court  of  Guatemala,  appointed,  in  1572,  Perafan 
de  Ribera,  Governor  of  Costa  Rica,  to  be  the  mayor  or 
"  correjidor  "  of  Nicoya.  ^ 

Herrera,  the  chronicler,  gives  an  account  of  this  incorpora- 
tion in  Chapter  XIII  of  his  '' Bescripcion  de  las  Indias;''  and 
it  also  appears  from  the  important  document  which  Herrera 
consulted  and  which,  under  the  title  of  "  Demarcacion  y 
Division  de  las  Indias  "  (Demarcation  and  Division  of  the 
Indies),  has  recently  been  published.      It  reads  as  follows  : 

"  And  Nicoya,  forty-eight  leagues  from  the  city  of  Granada, 
on  the  coast  of  the  Southern  Sea,  a  mayoralty  (corregimiento), 
composed  of  Indians,  which,  together  with  the  Island  of 
Chira,  within  its  jurisdiction,  eight  leagues  from  the  coast, 
contains  about  4,000  natives  paying  tribute  to  the  Crown, 
who  formerly,  and  up  to  the  year  1573,  were  subject  to  the 
"  Audiencia  "  of  Panama,  for  the  reason  that  they  had  been 
pacified  by  captains  appointed  by  that  court.  But  in  1573, 
Nicoya  was  incokpoeated  into  Costa  Rica,  the  Governor  of 


^  Peralta.    ^^ Costa  Bica,  Nicaragua  y  Panamd^''^  &c.,  pages  474  and  480. 


24 

which  sends  a  lieutenant  there.  "  The  Bishop  of  Nicaragua 
has  there  a  vicar.     Nicoya  has  a  tolerable  good  port."' 

Philip  II  appointed  in  1573  Diego  de  Artieda,  and  in  1593 
Don  Fernando  de  la  Cueva,  Governors  of  Costa  Bica  and 
"  Alcaldes  Mayores  "  of  Nicoya.  In  this  way  Nicoya  became 
in  fact  a  part  of  Costa  Eica.^ 

In  1665  Don  Juan  Lopez  de  la  Flor,  Governor  of  Costa 
Rica,  asked  the  mother  country  for  the  final  annexation 
of  Nicoya  to  the  Province  of  his  command.  The  King  re- 
ferred his  petition  to  the  Bishop  of  Nicaragua  and  to  the 
"  Audiencia  "  of  Guatemala.  The  Fiscal  thereof  (crown  so- 
licitor) reported  in  favor  of  the  annexation. 

Nicoya  retained,  however,  some  kind  of  autonomy,  and 
was  absolutely  independent  from  Nicaragua  in  executive  mat- 
ters to  such  an  extent  that,  according  to  a  Royal  ordinance 
of  November  24,  1692,  the  appointment  of  its  "Alcalde 
Mayor  "  was  to  be  made  directly  by  the  King  and  not  by  the 
Audiencia,  which  could  only  provide  for  that  position  ad 
interim  in  case  of  vacancy.^ 

This  constant  separation  of  Nicoya  from  the  Province  of 
Nicaragua  continued  to  exist  in  the  middle  of  the  XVIIIth 
century,  as  is  shown  by  the  "  Relacion  de  la  Visita  Apostolica, 
topografica,  historica  y  estadistica  del  Ilmo.  Senor  Don 
Pedro  Agustin  Morel  de  Santa  Cruz,  Obispo  de  Nicaragua, 
Costa  Rica  y  Nicoya."  (Report  of  the  Apostolic,  topo- 
graphic, historical,  and  statistical  visitation  made  by  the 
Most  Illustrious  Bishop  of  Nicaragua,  Costa  Rica  y  Nicoya, 
Don  Pedro  Augustin  Morel  de  Santa  Cruz). 

^  Herrera.     Descripcion,  &c. ,  chap.  xiii. 

Torres  de  Mendoza.     Golecdon  de  Documentos,  &c.,  vol.  xv,  p.  409, 

Peralta.     Costa  Rica  y  Colombia  de  1573  d  1881,  pp.  50  and  56. 

"^  Peralta.     Costa  Rica,  Nicaragua  y  Panama,  pp.  497,  512,  648. 

Torres  de  Mendoza.     Ubi  supra. 

Fernandez.     Coleccibn,  vol .  v,  p.  55. 

Biblioteca  Nacional  de  Madrid.     Manuscritos,  Codice  J.,  15. 

^  Archive  de  Indias  de  Sevilla.  Registro  de  Reales  Cedulas.  Cartas  y 
Expedientes  delPresidente  y  Oidores  de  la  Audiencia  de  Guatemala,  file  from 
1694  to  1696. 


25 

Bishop  Morel  Enumerates  the  towns  included  in  each  one 
of  the  three  provinces  of  his  diocese  in  the  following  way  : 

The  Province  of  Costa  Eica  consists  of  the  following 
towns  :  Cartago,  Laborio,  Quircot,  Tobosi,  Coo,  el  Pilar, 
Uj arras  (Curredabat),  Asserri,  la  Villeta,  Pacaca,  Curru- 
juqui,  Barba,  Esparza,  Canas,  Bagaces,  Boruca,  Terraba, 
Cabagra,  Atirro,  Pejivai,  Jesus  del  Monte,  Tucurrique,  and 
Matina."  "  These  are,"  he  says,  "  the  towns  which  I  have 
seen  and  the  roads  which  I  have  travelled. 

The  Province  of  Nicoya,  although  one  of  great  territorial 
extent,  scarcely  has  more  than  two  towns,  one  of  which  is  the 
town  of  Nicoya  and  the  other  Cangel. 

The  Province  of  Nicaragua,  which  is  the  third  one  of  this 
Diocese^  consists  of  the  following  towns  :  Villa  de  Nicaragua, 
Ometepe  island,  Granada,  Aposonga,  San  Esteban,  Popo- 
yapa,  Potosi,  Ampompua,  Obrage,  Buena  Vista,  San  Antonio, 
Nagualapa,  Chiata,  los  Cerros,  San  Juan  de  Tolu,  Apataco, 
Espana,  Diria,  Dinomo,  Nandaimes,  Jinotepe,  Diriamba,  Ma- 
satepe,  Naudasmo,  Jalata,  Niquinohomo,  Santa  Catarina, 
San  Juan,  Masaya,  Nisidiri,  Managua,  Namotiva,  Mateare, 
Nagarote,  Subtiada,  Leon,  y  Pueblo  Nuevo,  <fec.,  &c.,  &c. 

^^The  Diocese  is  as  vast,  Bishop  Morel  further  says,  as 
results  from  the  aggregation  of  the  three  above-named  Prov- 
inces."" 

The  Episcopal  See  was  Leon.  In  Cartago,  the  Capital  of 
Costa  Pica,  there  was  a  vicar.  In  the  Province  of  Nicoya 
there  was  none ;  but  at  the  time  of  the  visitation,  the  priest, 
Don  Tomas  Gomez  Tenorio,  was  appointed  to  fill  that  position. 

Bishop  Morel's  report  enjoys  so  much  credit  at  Nicaragua 
that  the  Government  of  that  Kepublic  directed  it  to  be  sent 
to  the  historian,  Hubert  H.  Bancroft,  in  order  that  he  might 
use  it  for  his  "  History  of  the  Pacific  States  of  North 
America." 

Engineer  Don  Luis  Diez  Navarro,  in  his  "  Eelacion  del 
Keino  de  Guatemala "  (Eeport  on  the  Kingdom  of  Guate- 
mala), addressed  to  his  superior,  the  General  of  the  Engineer 
Corps,  Marquis  of  Pozo  Blanco,  says  the  following : 


26 

"  On  the  19tli  of  January,  1744,  I  reacted  the  mountain 
of  Nicaragua,  a  very  rough  one,  which  marhs  the  end  of  the 
province  of  that  name^  and  I  went  up  as  far  as  I  explained 
in  the  report  of  my  former  trip,  and  I  entered  the  juris- 
diction OF  NicoYA,  which,  although  an  "  Alcaldia  Mayor," 
separate  from  the  Government  of  Costa  Rica,  is  reputed  to 
helong  to  this  province.''^ 

The  latter  assertion  seemed  to  be  so  unanswerable  to  the 
same  Diez  Navarro  as  to  cause  him  to  repeat  it  affirmatively 
in  another  of  his  papers,  where  he  says  that  the  coast  of 
Costa  Rica  on  the  Southern  Sea  extends  to  the  port  of  San 
Juan,  two  leagues  far  beyond  the  .La  Flor  River,  which  is 
the  boundary  of  Nicoya. 

Upon  these  facts,  the  Spanish  Cortes  of  1812,  then  the 
legitimate  and  sovereign  power  in  Spain,  directed  the  district 
of  Nicoya,  afterwards  called  Province  of  Guanacaste,  to  be 
annexed  to  the  Province  of  Costa  Rica.  United  in  this  way, 
Costa  Rica  and  Nicoya  were  called  to  perform  together  the 
most  important  function  of  the  civilized  nations,  the  exercise 
of  their  sovereign  rights  by  means  of  suffrage  ;  and  the  two, 
made  one  for  political  purposes,  were  caused  to  elect  one  rep- 
resentative to  be  sent  to  Spain,  to  the  Cortes,  and  another  to 
be  sent  to  the  local  legislature,  or  provincial  deputation, 
created  at  Leon.  Subsequent  to  that  time  Nicoya  ceased  to 
appear  as  an  individuality  different  from  Costa  Rica,  and 
the  local  legislature  was  simply  designated  as  "  Provincial 
Deputation  of  Nicaragua  and  Costa  Rica." 

Such  was  the  basis  of  the  political  union  of  Nicoya  and 
Costa  Rica,  and  such  the  situation  of  Nicoya  was  when  the 
provinces  of  the  Captaincy-General  of  Guatemala  proclaimed 
their  independence  from  Spain. 

The  declaration  of  independence  was  signed  at  Guatemala 


^  "  Bescripcion  del  Reino  de  Guatemala,'"  printed  at  Guatemala,  1850. 
Molina.     Bosquejo  de  Costa  Kica.     New  York,  1850. 
British  Museum.     Spanish  Manuscripts,  add.  17,566. 
Deposito  hidrografico.     Madrid. 


27 

on  the  15th  of  September,  1821,  without  the  distant  provinces 
knowing  anything  about  that  happy  event  which  rendered 
them  free,  without  costing  them  a  drop  of  blood  or  a  single 
effort.  The  information  of  what  had  happened  reached  them 
from  Guatemala,  and  they  did  not  take  long  in  making  use  of 
their  freedom.  Some  of  them  proclaimed  their  annexation 
to  Mexico,  under  the  imperial  sceptre  of  Iturbide,  and  elected 
deputies  for  the  Cortes  of  the  new  Empire.  Others  chose  to 
form  a  Federal  Kepublic,  and  all  of  them  except  Chiapas, 
which  remained  attached  to  Mexico,  even  after  Iturbide's 
fall,  sent  representatives  to  a  constituent  assembly,  which 
met  at  Guatemala,  and  created  the  Federal  Republic  of  Cen- 
tral America  under  the  political  constitution  of  November  22, 
1824. 

Nicoya,  which  found  itself  in  an  anomalous  position  be- 
tween Nicaragua  and  Costa  Eica,  took  advantage  of  the  cir- 
cumstances, followed  the  example  of  its  neighbors,  and,  by 
an  act  of  its  free  and  spontaneous  will,  asked  for  its  annexa- 
tion to  Costa  Rica  in  1824. 

The  Assembly  of  the  new  State  of  Costa  Rica  accepted  the 
incorporation  of  Nicoya,  subject,  however,  to  what  the  Fed- 
eral Congress  should  deem  best  to  decide ;  and  the  Federal 
Congress,  by  decree  of  December  9,  1825,  approved  it  and 
ordered  it  to  be  carried  out ;  the  grounds  of  this  decision  be- 
ing that  the  authorities  and  the  municipal  bodies  of  the  Dis- 
trict of  Nicoya  had  repeatedly  requested  the  separation  of 
Nicoya  from  Nicaragua  and  its  annexation  to  Costa  Rica, 
and  also  that  the  residents  of  Nicoya  had  actually  effected 
the  said  incorporation  during  the  political  troubles  of  Nica- 
ragua, and,  furthermore,  that  so  it  seemed  to  be  required  by 
the  topographic  position  of  the  district.  ^ 

Subsequently  to  this  period,  and  in  spite  of  the  threats 
and  pretensions  of  Nicaragua,  the   people  of  Nicoya  have 


-  See  Document  No.  2. 

Peralta.     El  canal  inter oceanico^  Brussels^  1887,  p.  64. 


28 

maintained  their  firm  decision  to  continue  to  be  a  part  of 
Costa  Eica.  In  1836  they  repelled  by  force  a  Nicaraguan 
invasion  under  the  leadership  of  Manuel  Quijano. 

In  1838,  when  the  Federal  Republic  was  dissolved,  in  the 
midst  of  the  confusion  and  agitation  which  caused  the 
National  Congress  to  take  the  desperate  step  of  breaking  the 
compact  of  1824,  the  Province  of  Nicoya  or  Guanacaste  felt 
once  more  the  necessity  of  again  emphatically  expressing  its 
desire  to  remain  united  to  Costa  Eica,  and,  by  new  acts,  it 
renewed  its  annexation. 

The  Government  of  Costa  Eica,  on  its  part,  has  always 
performed  the  duties  which  the  incorporation  of  Nicoya  into 
its  territory  imposed  on  it.  It  has  paid  the  portion  of  both 
the  colonial  domestic  debt  and  the  debt  contracted  by  the 
Federal  Eepublic,  which  belonged  to  Nicoya.  It  has  given 
Nicoya  peace,  schools,  and  roads.  It  has  sheltered  it  from  the 
commotions  which  have  afflicted  Nicaragua.  It  has  defended 
it.     It  has  protected  it  against  all  aggressions  and  threats. 

In  1842  the  Congress  of  Nicaragua  authorized  the  execu- 
tive power  to  incorporate  in  fact  the  district  of  Guanacaste 
(Nicoya)  into  the  territory  of  Nicaragua.  The  Government 
of  Costa  Eica  looked  at  this  decree  as  a  declaration  of  war, 
proclaimed  that  Guanacaste  was  an  integral  part  of  its  terri- 
tory, and  prepared  itself  for  its  defence.  But  Nicaragua  did 
not  stand  by  her  provocation. 

In  1848  representatives  of  Nicoya  signed  the  constitution 
of  the  "  Eepublic  of  Costa  Eica,"  when  Costa  Eica  deemed 
it  advisable  to  take  this  name  and  cease  to  be  called  a  "  State  " 
of  a  confederation  which  had  ceased  to  exist  ten  years  before. 
The  citizens  of  Nicoya  (Guanacaste)  ratified,  furthermore, 
their  ancient  annexation  to  Costa  Eica.  In  1856  Costa  Eica 
maintained  its  rights  and  the  integrity  of  its  territory,  invaded 
at  Guanacaste,  and  repelled  the  invaders,  and  co-operated 
efficiently  in  expelling  them  from  the  Nicaraguan  territory. 

In  1857  Nicaragua  attempted  again,  by  means  of  a  decree, 
to  regain  the  eminent  domain  and  sovereignty  over  Guana- 


29 

caste ;  but,  by  another  decree  of  October  27,  1857,  she  was 
pleased  to  declare  that  she  would  not  oppose  the  inhabitants 
of  Guanacaste  to  remain  subject  to  the  Government  of  Costa 
Kica,  should  they  deem  it  advisable. 

The  validity  of  the  last  decree  has  been  sanctioned  by  the 
accomplished  facts ;  and  the  inhabitants  of  Guanacaste  re- 
main yet,  because  it  is  advisable  for  them  to  do  so,  under 
the  sovereignty  of  Costa  Rica. 

Such  were  the  facts  and  the  law  in  1858,  before  the  cele- 
bration of  the  treaty  of  limits  between  Costa  Rica  and 
Nicaragua. 

On  April  15,  1858,  the  said  treaty  was  signed,  and  by  it 
Nicaragua  finally  re-acknowledged  that  the  district  of  Nicoya 
was  included  within  the  territory  of  Costa  Rica. 

This  is  the  treaty,  the  validity  of  which  the  Government 
of  Nicaragua  comes  now  to  contest,  after  fourteen  years  of 
faithful  execution  on  both  sides. 


Chapteb    II. 

THE    SAN    JUAN    RIVER    DURING  THE    SPANISH   RULE. 

The  San  Juan  river,  also  called  Desaguaclero  (outlet),  never 
belonged  exclusively  and  in  all  its  length  to  the  Province  of 
Nicaragua.  Until  1539  it  had  not  been  explored  or  navigated 
as  far  as  the  sea,  and  then  the  Province  of  Nicaragua  was 
understood  to  be  the  narrow  strip  running  between  the  South- 
ern Sea  and  the  "  fresh- water  lake  of  the  city  of  Granada," 
that  is,  the  Lake  of  Nicaragua. 

In  the  above-cited  year  of  1539  Alonso  Calero  and  Diego 
Machuca  de  Zuazo,  in  compliance  with  the  desires  of  the 
court,  which  had  repeatedly  invited  the  investigation  of  the 
secret  of  the  outlet  of  the  fresh-water  sea,  had  the  fortune  and 
the  glory  of  finding  the  mouth  of  the  San  Juan  river,  and 
pass  through  it  into  the  Northern  Sea.^ 

It  was  with  abundant  reason  that  Captain  Calero,  by  letter 
addressed  by  him  to  the  King,^  reminds  His  Majesty  that  the 
undertaking  to  which  he  had  given  so  successful  a  termination 
required  some  reward,  and  complains  that,  instead  of  receiv- 
ing it,  he  had  been  wronged  both  by  Rodrigo  de  Contreras, 
the  Governor  of  Nicaragua,  and  by  Doctor  Robles,  "  Oidor  " 
(Associate  Justice  of  the  Royal  Court)  at  Panama,  each  one 
of  whom,  he  said,  was  trying  to  derive  profit  from  what  had 
cost  them  nothing. 

Dr.  Robles,  on  his. own  part,  allotted  to  his  son-in-law, 
Hernan  Sanchez  de  Badajoz,  all  the  lands  adjoining  the  San 
Juan  river,  or  "  Desaguadero,"  and  entered  with  him  into  an 
agreement  for  the  pacitcation  and  submission  of  the  natives, 
the  limits   described   in  the  instrument  having  been  from 


Peralta.     CoHta  Rica,  Nicaragua,  y  Panama,  p.  728  and  the  following. 
^ Ibid.,  page  94. 


31 

the  Dukedom  of  Veragua  to  the  boundary  of  Honduras,  or 
Guaymura.  ^ 

On  the  other  hand,  the  "  Council,  Justices,  and  Board  of 
Aldermen  "  (Concejo,  Justicia  y  Kegimiento)  of  the  city  of 
Leon,  under  date  of  May  25th,  1540,^  in  making  opposi- 
tion to  the  pretension  of  Doctor  Kobles,  gave  clear  evidence 
that  the  "  Desaguadero  "  and  adjoining  lands  did  not  belong 
at  that  time  to  the  Government  of  Nicaragua.  Here  are 
their  own  words  : 

"  We  request  Your  Majesty  to  take  into  consideration  that 
the  inhabitants  of  this  province,  since  its  discovery,  and 
always,  have  been  incurring  expenses  for  finding  out  the 
secret  of  the  outlet  (Desaguadero),  and  of  the  lands  adjoin- 
ing it,  and  that  they  will  continue  to  do  the  same  until  the 
secret  is  discovered ;  and  not  to  allow  either  the  Governor 
of  Veragua,  nor  Doctor  Eobles,  nor  any  other  person  whom- 
soever, except  the  Governor  of  this  Province,  or  his  Captains, 
and  the  residents  or  inhabitants  of  the  same,  to  inter- 
fere with,  or  attempt  to  take  away  from  this  province,  what 

IS  so  NEAR  AND  CLOSE  TO  IT,  AND  HAS  COST  IT  SO  MUCH,"  &C.,  &C. 

But  there  was  another  party  having  an  interest  in  the  mat- 
ter, and  that  was  Diego  Gutierrez,  the  Governor  of  the  Prov- 
ince of  Cartago  (now  Costa  Rica),  who  asked  for  him,  exclu- 
sively, the  right  to  populate  and  reduce  to  submission  the 
two  banks  of  the  "  Desaguadero,"  because  this  and  the  lands 
adjoining  it  were  found  within  the  limits  of  his  command. 
In  support  of  his  petition.  Governor  Gutierrez  referred  to  the 
articles  of  agreement -"^  he  had  entered  into  with  the  Crown 
on  November  29,  1540,  wherein  the  limits  of  his  jurisdiction 
had  been  fixed  by  saying,  "  from  the  limits  of  the  Dukedom 


^  See  Letter  of  Dr.  Robles  to  Cardinal  SiglieDza,  and  the  Council  of  the 
Indies. 

Peralta.  Co8ta  Rica^  Nicaragua,  &c.,  p.  741.  Royal  Letters-patent  to 
Rodrigo  de  Contreras.     Ibid.,  p.  747. 

^  Peralta.     Ibid.,  p.  97,  and  the  following. 

^Peralta.    Ibid,,  p.  89. 


32 

of  Veraguas  to  the  Rio  Grande  river,  on  the  other  side  of 
Cape  Camaron."  The  Desaguadero  evidently  remained  in- 
cluded, under  these  circumstances,  within  the  limits  of  his 
government. 

The  King  set  at  rest  all  these  differences  by  his  celebrated 
Royal  "  C^dulas  "  or  "  ordinances,"  issued  at  Talavera  on  the 
11th  of  January  and  6th  of  May,  1541,  and  at  Yalladolid  on 
the  14th  of  May  of  the  same  year. 

In  consequence  of  these  decrees  the  river  Avas  divided  into 
two  parts.  The  upper  part,  15  leagues  long,  from  its  outlet 
or  origin  from  the  lake  down,  was  adjudicated  to  the  Province 
of  Nicaragua  ;  and  the  lower  part,  from  the  end  of  the  above 
to  the  mouth  of  the  river  on  the  Northern  Sea,  was  declared  to 
belong  to  the  Government  of  Costa  Rica.  And,  as  far  as  the 
use  of  the  whole  river  and  of  the  lake  for  the  purposes  of 
navigation  and  fishing  was  concerned,  it  was  provided  that 
both  the  river  and  the  lake  should  be  common  for  the  two 
provinces,  without  any  distinction. 

And  in  order  to  prevent  the  Governor  of  Nicaragua  from 
making  opposition  to  this,  the  Council  of  the  Indies  and 
the  King  himself  ratified  and  affirmed  it,  and  declared  that 
the  penalty  of  removal  from  office  and  a  fine  of  one  hundred 
thousand  "  maravedis  "  should  be  incurred  by  any  one  at- 
tempting to  go  against  it.  ^ 

Diego  Gutierrez  was  succeeded  in  the  government  of  Cartago, 
or  of  the  "  Desaguadero  "  as  the  Bishop  of  Nicaragua,  Fray 
Antonio  de  Valdivieso,  also  calls  it,  by  Juan  Perez  de 
Cabrera  ;  and  the  Royal  Commission,  signed  at  Yalladolid 
on  the  22d  of  February,  1549,  contains  the  same  provisions 
as  to  limits. 

But  the  pacification  of  Cartago,  or  "El  Desaguadero,"  was  still 
to  be  accomplished.  And ,  in  order  to  accomplish  it,  the  Crown 
decreed  that  Licenciate  Ortiz,  appointed  ''Alcalde  Mayor " 
of  Nicaragua,  should  take  charge  of  the  colonization  of  "  a 


Peralta.     Ibid.,  pp.  Ill,  113,  and  138. 


/  83 

CERTAIN  LAND  WHICH  IS  FOUND  BETWEEN  THE  PROVINCE  OF  NIC- 
ARAGUA AND  THAT  OF  HONDURAS  AND  THE  DeSAGUADERO  OF  THE 

said  province,  towards  the  cities  of  nombre  de  dios  and 
Panama,  between  the  Southern  and  the  Northern  Seas." 
The  instructions  communicated  to  that  effect  to  Licenciate 
Ortiz  were  dated  at  Toledo  on  the  23d  of  February,  1560.  ^ 

Ortiz  could  not  fulfil  his  mission,  and  the  "  Audiencia  " 
(Eoyal  Court)  of  Guatemala,  on  May  17,  1541,  by  order  of 
the  King,  appointed  Licenciate  Don  Juan  Cavallon  to  be 
"  Alcalde  Mayor  "  of  the  Province  of  New  Cartago  and  Costa 
Kica,  and  described  the  limits  of  his  jurisdiction  as  foUows : 

"  As  FAR  AS  THE  BOUNDARY  OF  THE  CITY  OF  NaTA  AND  ITS  JURIS- 
DICTION, IN  THE  Kingdom  of  Tierra  firma,  otherwise  called 
Castilla  del  Oro,  and  then  along  this  line  to  the  limits 
OF  THE  Dukedom  of  Yeragua,  and  from  the  Southern  Sea 
TO  THE  Northern  Sea  up  to  '  El  Desaguadero,'  this  being 
included."  2 

The  same  limits  were  marked  down  to  Cavallon's  succes- 
sor, Juan  Vazquez  del  Coronado  ;  and  the  jurisdiction  given 
him  over  that  territory  was  confirmed  by  the  Crown  in  Royal 
ordinances  of  April  8  and  August  7,  1565.  ^ 

Vazquez  de  Coronado,  who  was  "  Alcalde  Mayor  "  of  Nic- 
aragua and  of  Costa  Rica  about  the  year  1563,  reduced  to 
submission  and  placed  under  the  jurisdiction  of  the  Province 
of  Costa  Rica  the  Catapas  Tices  and  Votos  Indians  who  in- 
habited the  shores  of  the  Lake  of  Nicaragua  and  the  banks 
of  the  outlet.* 

Upon  the  death  of  Vazquez,  the  King  appointed  Perafan 
de  Rivera  Governor  and  Captain-General  of  Costa  Rica,  and 


^Peralta.     Ibid.,  p.  170. 

^  Peralta.     Ibid.,  p.  194. 

Peralta.     The  River  of  San  Juan  de  Nicaragua,  in  Ex  Doc.  Senate  No. 
50,  49th  Congress,  2d  Session,  pp.  36-42. 

^  Peralta.     Costa  Rica,  &c. ,  pp.  378  and  387. 

*  Peralta.     Costa  Rica,  «&c.     Letter  or  report  of  J.  Vazquez  de  Coro- 
nado, pp.  230,  764,  766,  768. 
3 


34 

the  limits  of  his  command  were  described  by  Boyal  ordinance 
of  July.  19,  1566,  issued  at  Bosque  de  Segovia,  exactly  in 
identical  terms  as  they  had  been  marked  down  in  Vazquez's 
commission.  1 

It  appears,  also,  that  among  the  distributions, "  repartimi- 
entos,"  of  Indians,  made  by  Bivera,  there  was  one  which 
referred  to  the  Botos,  or  Votos,  Indians,  who  inhabited  the 
banks  of  the  "  Desaguadero,"  and  are  mentioned  in  the 
"  Belacion  del  descubrimiento  "  (account  of  the  discovery)  of 
the  river,  to  which  I  have  alluded.  The  act  was  done  at 
Cartago  on  the  12th  of  January,  1569. 

In  1573  reticles  of  agreement  were  signed  between  the 
Crown  and  Diego  de  Artieda,  who  was  appointed  Governor 
and  Captain-General  of  Costa  Bica,  wherein  the  limits  of  his 
government  were  described  as  follows :  "  From  the  Northern 
TO  THE  Southern  Sea  in  width,  and  in  length  from  the 

BOUNDARY  OF  NICARAGUA,  ON  THE  SIDE  OF  NlCOYA,  RIGHT  TO  THE 
VALLEYS  OF  ChIRIQUI,  DOWN  TO  THE  PROVINCE  OF  VeRAGUA  ON 
THE  SOUTHERN  SIDE,  AND  ON  THE  NORTHERN  SIDE,  FROM  THE  MOUTH 
OF  THE  OUTLET  WHICH  IS  TOWARDS  NICARAGUA,  THE  WHOLE  TRACT 
OF  LAND  AS  FAR  AS  THE  PROVINCE  OF  YeRAGUA."^ 

In  regard  to  the  extent  to  be  given  to  the  mouth  of  the 
outlet,  the  Boyal  Letters-Patent  and  Ordinances  above  cited 
explain  it  sufficiently :  "  As  far  as  El  Desaguadero,  inclu- 
sive,'' says  the  Boyal  Letter  to  Lie.  Cavallon,  the  real  con- 
queror of  Costa  Bica. 

From  1573  to  1821,  in  which  last  date  the  power  of  Spain 
ceased,  no  alteration  was  made  by  the  Crown  in  the  limits  of 
Costa  Bica  on  t^ie  side  of  the  outlet,  although  tlie  Governors 
of  Costa  Bica  exercised  on  different  occasions  acts  of  juris- 
diction on  the  cost  of  Mosquitia. 

The  principal  towns  of  the  Province  were  founded  in  the 


^Peralta.    iWd,  p.  411. 
'^Peralta.     Co8ta  Rica,  &c.,  p.  497. 
Torres  de  Mendoza.     Coleccidn  de  Documentos  ineditos. 


35 

interior  of  the  country,  but  the  Governors  were  careful  to  ex- 
ercise jurisdiction  over  the  whole  territory  intrusted  to  them. 
This  is  shown,  among  many  other  things,  by  the  record  of 
the  possession  taken  of  the  Votos  Indians,  a  ceremony  which 
was  performed  on  the  right  bank  of  the  Desaguadero,  at  the 
place  named  "  El  Eeal  de  los  Yotos,"  on  the  26th  of  February, 
1640.     It  reads  as  follows  : 

"  And  on  the  26th  of  February  of  the  said  year,  the  said 
Captain  Jeronimo  de  Retes  arrived  with  the  said  infantry  to 
the  house  of  the  said  Cacique,  whom  he  found  to  have  with 
him,  called  to  that  effect  by  him  from  different  parts,  eighty 
persons  of  all  classes  and  ages,  natives  of  the  country,  and 
among  them  thirty  Indians ;  and  through  the  interpreter, 
Diego  Latino,  an  Indian  guide,  who  had  been  taken  from  this 
city,  and  speaks  and  understands  the  language  of  the  said 
Votos  Indians,  the  said  Cacique  said  to  the  said  Captain 
Jeronimo  de  Retes,  that  in  obedience  to  his  orders  and  trust- 
ing to  his  word,  such  as  he  had  understood  it  through  the 
said  Indian  Pisirara,  he  received  him  in  peace,  and  by  an  act 
of  his  free  will,  without  duress  or  coercion  of  any  kind,  he 
acknowledged  for  himself  and  for  all  the  other  people,  native 
Votos  Indians,  both  present  and  absent,  the  allegiance  which 
he  owes  to  the  King,  Our  Lord,  as  was  owed  and  acknowl- 
edged by  their  forefathers  ;  and  he  promised  to  be  a  faithful 
vassal,  in  order  that  the  Holy  Gospel  should  be  preached  to 
them,  and  to  continue  to  be  faithful.  And  this  having  been 
heard  by  the  said  Captain  Jeronimo  de  Retes,  who  listened 
to  the  reasonings  of  the  said  Cacique  Pocica,  accepted  in  the 
name  of  the  King,  Our  Lord,  the  said  allegiance,  which  was 
offered  and  given,  and  took  actual  and  bodily  possession  of  the 
rights  of  sovereignty  on  these  and  all  the  other  native  Votos 
Indians  of  the  province.  This  was  said  through  the  interpreter 
to  the  said  Cacique,  and  he  promised  again  and  reiterated  the 
said  allegiance."  (Coleccion  de  Documentos  para  la  Historia 
de  Costa  Rica,  by  Licenciate  Don  Leon  Fernandez.  San  Jos4 
de  Costa  Rioa,  1882,  Vol.  II,  pp.  226-27). 


Eetes  did  this  by  commission  of  the  Governor  of  Costa 
Rica,  Gregorio  de  Sandoval. 

By  virtue  of  orders  and  decrees  enacted  by  the  King  of 
Spain,  subsequent  to  the  instructions  given  by  Licenciate 
Ortiz,  a  tract  of  land,  fifteen  leagues  in  extent,  adjoining  the 
left  bank  of  the  "  Desaguadero,"  was  segregated  from  the  ju- 
risdiction of  Costa  Rica  ;  but  the  whole  land  which  runs  from 
sea  to  sea,  from  the  southern  bank  of  the  river  up  to  Nicoya, 
in  latitude,  and  in  longitude  from  the  Southern  Sea  to  the  Es- 
cudo  de  Veragua  and  the  Chiriqui  plains,  east  of  Punta  Bo- 
rica,  was  left  to  it. 

In  regard  to  the  waters  of  the  river  and  the  lake,  the  use 
thereof  was  not  exclusively  given  either  to  Nicaragua  or  Costa 
Rica,  and  in  this  respect,  as  was  natural,  all  that  had  been 
previously  decided  about  the  community  as  to  the  rights  of 
navigation  and  fishing  in  favor  of  the  two  bordering  prov- 
inces, on  both  the  river  and  the  lake,  was  left  in  force. 

In  the  above-cited  "  Descripcion  de  las  Indias  Occiden- 
tales  "  (Edition  of  1730,  p.  25),  a  map  of  Costa  Rica,  Nicoya, 
and  Nicaragua  is  found  ;  and  there  it  appears  that  the  De- 
saguadero river  is  the  border  line  between  Costa  Rica  and 
Nicaragua  on  the  side  of  the  Northern  Sea.  A  copy  of  this 
map  has  been  appended  to  this  argument. 

Numerous  ancient  documents  confirm  the  right  of  Costa 
Rica  over  the  right  bank  of  the  San  Juan  river  and  its  waters, 
the  principal  among  them  being  the  commission  given  by 
Velasquez  Ramiro,  "  Visitador  "  and  Juez  de  Residencia  " 
(judge  appointed  to  investigate  the  action  of  the  superior 
colonial  authorities  for  the  Provinces  of  Costa  Rica  and 
Nicaragua),  to  Antonio  Perera  and  to  Francisco  Pavon  to 
explore  the  communication  of  the  two  seas  (1591) ;  the  re- 
port of  Diego  de  Mercado  to  the  King  upon  the  same  sub- 
ject (1620) ;  the  report  made  by  Don  Rodrigo  Arias  Maldo- 
nado.  Governor  of  Costa  Rica,  to  the  King,  on  the  towns  of 
his  Province  (1662) ;  the  letter  of  Don  Juan  Lopez  de  la  Flor 
to  His  Majesty  upon  the  subject  of  the  occupation  of  the 


37 

castle  by  the  English  enemy  (1670)  ;  the  reports  of  Don 
Juan  Francisco  Laens  to  the  King,  making  a  geographical 
description  of  Costa  Rica  and  suggesting  the  means  of  de- 
fending it  (1675),  &C.,  &C.1 

In  accordance  with  these  documents,  Juarros,  the  historian 
of  the  Kingdom  of  Guatemala,  described  the  limits  of  Costa 
Rica  on  the  side  of  the  Northern  Sea  by  saying  "  from  the 
mouth  of  the  San  Juan  river  to  the  Escudo  de  Yeraguas."^ 

In  this  description  all  the  geographers  as  well  as  all  the 
cyclopaedias,  especially  the  British,  fully  agree. 

Both  the  sixth  edition  of  the  British  Cyclopfedia  (the  first 
one  published  after  the  Independence,  some  time  between 
1826  and  1830)  and  the  last  one,  recently  published,  of  this 
conscientious  repository  of  human  knowledge,  prove  this 
fact. 

It  will  be  seen,  therefore,  that,  during  the  Spanish  rule, 
Costa  Rica  was  first  the  exclusive  owner  of  the  lower  half  of  the 
river  and  of  the  neighboring  lands  on  both  sides  all  along  the 
whole  extent  of  the  said  half  ;  and,  subsequently,  it  was  exclu- 
sive owner  of  the  river  and  of  its  southern  bank,  without 
prejudice  to  the  right  that  Nicaragua  had  to  navigate  and  fish 
in  the  river,  and  which  Costa  Rica  had,  also,  in  the  same 
river  and  in  the  lake,  all  of  which  has  been  shown  by  irre- 
futable documents.  3 


^  All  these  documents  can  be  found  in  the  above  cited  work  of  Senor 
Peralta. 

See  also  the  work  of  the  same  author,  The  River  of  San  Juan  de  Nicara- 
gua, &c. ,  previously  cited  and  translated  in  Executive  Doc.  No.  50,  Senate, 
49th  CoDgress,  2d  Session,  January,  1887. 

"^  Vol.  1,  part  1,  chap.  iii. 

^  The  right  of  navigation  was  confirmed  in  favor  of  Costa  Rica  by  Royal 
ordinance,  dated  at  Aranjuez  February  6,  1796. 


Chapter  III. 

THE  SAN  JUAN  RIVER  FROM  1821  TO  THE  DATE  OF  THE  TREATY  OF  1858. 

If,  during  the  colonial  regime,  the  San  Juan  river,  other- 
wise called  "  Desaguadero,"  did  not  belong  exclusively  to 
Nicaragua,  it  was  less  hers  afterwards. 

The  Constitution  of  Costa  Rica  of  January  21,  1825  (Art. 
XV),  explicitly  declared  that  the  limit  of  the  national  terri- 
tory on  that  side  was  the  mouth  of  the  San  Juan  river  ;^  and 
such  was  the  territory  which  was  acknowledged  to  belong  to 
that  State  by  the  Republic  of  Central  America,  without  a 
voice  of  dissent  or  contradiction  having  been  raised  against 
it  either  at  the  Federal  Congress  or  at  the  bordering  State. 
'  This  declaration  was  afterwards  repeated  and  ratified  in 
all  subsequent  constitutions  of  Costa  Rica.^ 

Nicaragua  enacted  her  Constitution  one  year  after  Costa 
Rica,  in  1826,  and  marked  as  her  frontier,  on  the  Costa  Rican 
side,  the  same  which  had  existed  during  the  Spanish  rule, 
when  the  two  countries  were  provinces  of  Spain.  There  was, 
therefore,  between  the  two  Constitutions,  in  regard  to  this 
point,  the  most  perfect  accord. 

The  pretension  of  Nicaragua  to  extend  her  frontier  beyond 
the  San  Juan  river  was  an  afterthought  which  came  to  her 
mind  long  afterwards,  and  which  originated  in  the  idea  of 
getting  some  compensation  for  the  alleged  loss  she  had  sus- 
tained by  the  annexation  of  Nicoya  to  Costa  Rica.  Had  the 
latter  event  never  happened,  surely  Nicaragua  would  never 
have  thought  of  denying  Costa  Rica  its  rights  on  the  San 
Juan  river. 

The  fact  that  an  ancient  fortress  named  "  Castillo  Viejo  " 


See  Document  No.  63. 
Doc.  No.  63. 


39 

(old  castle),  now  possessed  by  Nicaragua,  stood  on  the 
southern  bank  of  the  river,  has  been  alleged  as  a  ground 
for  the  claim  of  that  country  to  exclusive  jurisdiction  on  the 
said  bank  and  on  the  river  itself. 

But  to  do  so,  it  is  indispensable  either  to  forget  history  or 
to  ignore  the  facts  recorded  by  it. 

What  power,  what  authority,  what  jurisdiction  could  the 
Nicaraguan  authorities  exercise  over  that  fortress  when  it  was 
under  the  control  of  the  Captain-General  of  Guatemala,  who 
built  it  by  order  of  the  King  and  at  the  expense  of  the  pub- 
lic treasury  of  the  Kingdom  of  Guatemala,  who  repaired  it 
when  necessary,  and  who  always  kept  it  under  his  authority, 
putting  it  in  charge  of  wardens  and  Alcaldes  directly  appointed 
by  the  King  ? 

What  power,  what  authority,  what  jurisdiction  did  the 
Governor  of  Nicaragiia  ever  exercise  over  that  fortress,  when 
by  express  decision  of  the  Council  of  the  Indies  it  was  de- 
clared that  the  fortress  and  its  warden  should  be  subordinate, 
not  to  the  Governor  of  Nicaragua,  but  to  the  Captain-Gen- 
eral of  Guatemala  ?  ^  The  Governor  of  Nicaragua  did  not 
even  supply  it  with  provisions,  which  duty  was  incumbent 
upon  the  Governor  of  Cartago,  as  stated  by  Bishop  Morel.  ^ 

When  that  Reverend  Prelate  visited  the  castle,  and  wanted 
to  introduce  in  it  certain  reforms,  he  addressed  the  Governor 
of  Nicaragua ;  but  the  latter  answered  at  once  that  he  had 
nothing  to  do  with  that  fortress.  Then  the  Bishop  turned 
his  eyes  to  Guatemala,  and  there  his  representations  were 
listened  to  and  decided  favorably. 

The  agreement  entered  into  between  the  Crown  and  Diego 
de  Artieda  is  a  document  of  such  a  strength  as  to  have  pre- 
vented Nicaragua  from  denying  that  the  outlet,  or  "  Desagua- 


^  Archives  of  Indies,  of  Seville.    *'  Secretaria  de  Nueva  Espana."    Guate- 
mala.    Letters  and  records  of  secular  persons.     Years  1726-1736. 
Peralta.     El  rio  San  Juan,  &c. ,  p.  30. 
Ex.  Doc.  Senate,  No.  50,  above  cited. 
^This  is  shown  by  the  "  Gaceta  de  Nicaragua  "  files  of  1374. 


40 

dero,"  is  the  limit  between  the  two  Eepublics.  But  Nicara- 
gua tries  to  escape  from  the  difficulty  by  claiming,  without 
foundation,  that  the  outlet,  or  "  Desaguadero,"  and  the  "  San 
Juan  river  "  are  not  one  and  the  same. 

In  connection  with  this  aspect  of  the  question  the  Nicara- 
guan  Foreign  Office,  presided  over  by  Don  Anselmo  H.  Kivas, 
expressed  itself  on  June  30,  1872,  in  the  following  language : 

"  Your  Excellency  says  that  the  Colorado  river  belongs  to 
Costa  Kica,  not  only  under  Art.  II  of  the  treaty  of  limits,  but 
under  the  colonial  charter  issued  by  King  Philip  II  at  Aran- 
juez,  on  the  18th  of  February,  1574,  which  established  the 
boundary  of  the  Government  and  Captaincy-General  of  the 
Province  of  Costa  Rica,  as  running  from  the  mouths  of  the 
outlet  '  Desaguadero  '  on  the  Atlantic  (Rio  de  San  Juan)  to 
the  Province  of  Veragua."     *     *     * 

"  As  to  the  Royal  charter  of  Philip  II,  to  which  Your  Ex- 
cellency refers,  it  is  a  proven  fact  that  Costa  Rica  cannot 
claim  that  its  boundary  goes  as  far  as  '  the  mouth  of  the  San 
Juan  river,'  which  Your  Excellency  wishes  to  confuse  with 

*  the  mouths  of  the  outlet, "  Desaguadero," '  things  which  some 
other  Royal  orders,  several  historians  and  geographers,  and 
even  the  tradition  of  the  country,  have  proved  to  be  different. 
Never  has  the  San  Juan  river  or  its  mouth  been  designated 
by  names  different  from  those  which  they  have  at  present." 

*  4f     * 

"  Let  this  be  said  solely  to  prove  that  the  claims  of  Costa 
Rica  to  the  waters  of  the  Colorado  river  and  the  adjoining 
territory  cannot  be  traced  back  to  the  antiquity  which  Your 
Excellency  wishes  to  attribute  to  them,  but  that  they  are 
founded  only  on  the  treaty  of  limits  of  1858." 

The  predecessor  of  Senor  Rivas  in  the  Nicaraguan  State 
Department,  Licenciate  Don  Tomas  Ay  on,  author  of  a  "  His- 
tory of  Nicaraguayrom  the  times  of  the  Conquest','  said,  also,  in 
a  pamphlet  published  a  few  days  before  the  foregoing  des- 
patch of  Senor  Rivas,  what  I  now  transcribe,  namely :  "  Which 
are  the  mouths  of  the  '  Desaguadero  ? '  Laws,  historians,  geog- 


41 

raphers,  all,  in  one  word,  have,  since  the  days  of  the  dis- 
covery, given  the  name  of  '  San  Juan  de  Nicaragua  river '  to 
the  stream  which  we  know  now  by  the  same  name.     No  one 

CALLED    IT    'THE    DeSAGUADEEO,'    NOE    HAS     THE     STREAM   EVER 

HAD  MORE  THAN  ONE  MOUTH.  It  is,  therefore,  evident  that 
the  point  called  by  the  Eoyal  charter  'the  mouths  of  the 
"  Desaguadero  "  '  cannot  be  the  mouth  of  the  San  Juan  river, 
and  certainly  that  point  has  to  be  found  far  beyond  the 
Colorado  river."     ^     "»     ^ 

It  is  truly  astonishing  that  persons  so  enlightened  and  up- 
right as  Senores  Eivas  and  Ayon  should  have  used,  in  a  dis- 
cussion like  this,  an  argument  so  much  at  variance  with  his- 
torical truth,  and  the  most  elementary  notions  of  ancient  and 
modern  geography. 

Senores  Don  Anselmo  Hilario  Kivas  and  Don  Tomas  Ayon 
affirmatively  state  that  the  San  Juan  river  and  the  "  Desagua- 
dero" are  two  different  things  ;  but  the  fact  that  they  are  the 
same  thing  is  witnessed  by  the  Royal  ordinance  of  Valladolid 
of  September  9,  1536,  ^  which  ordered  the  exploration  of  the 
outlet,  Desaguadero,  of  the  Lake  of  Granada,  by  the  writings 
of  Calero  and  Machuca,  who  made  that  exploration  ;  by  the 
Council,  justices,  and  aldermen  (Concejo,  justicia  y  regi- 
miento)  of  the  city  of  Leon  ;  by  all  the  "Governors  of  Nicara- 
gua, and  by  all  historians  and  geographers  from  Pedrarias 
Davila  to  Senor  Ayon.^ 

Engineer   Don    Luis    Diez   Navarro    says :    "  The    three 


^Archives  of  Indies  of  Seville.  Audiencia  of  Guatemala,  Nicaragua. 
Register  of  Royal  Ordinances. 

Peralta.     Costa  Bica,  Nicaragua,  &c.,  p.  116. 

^  Torres  de  Mendoza.     Coleccion,  &c. 

ToRQUEMADA.     Monavquia  Indiana. 

Peralta.  Costa  Rica,  Nicaragua,  &c.,  pp.  58,  94,  97,  113,  147,  189,  191, 
559,  566,  641,  728,  752,  and  754. 

Peralta.     Costa  Rica  y  Colombia. 

See  in  Alphabetical  Index  of  Geographical  Names  :  Desaguadero,  San 
Juan  de  Nicaragua. 

Johnson's  American  Cyclopaedia  ;  word,  San  Juan  River,  &c. 


42 

mouths  of  the  San  Juan  river  are  the  outlet  of  the  famous 
lakes  of  Managua  and  Nicaragua.  They  are  called  San  Juan, 
Taura,  and  Colorado.  Said  lakes  empty  through  the  same 
three  mouths  which  connect  at  six  or  seven  leagues,  and  form 
but  one  river." 

"From  the  first  mouth,  which  is  called  San  Jxian^  from 
west  to  east  up  to  the  second  one,  named  Taura,  there  are  two 
leagues ;  from  Taura  to  the  third  mouth,  named  Colorado 
river,  there  are  six  leagues ;  from  here  to  Matina,  twenty. 
The  rivers  named  Reventazon,  or  Ximenez,  and  Suerre,  or 
Pacuare,  which  are  large  streams,  are  found  between  the 
three  above  rivers,  and  can  be  navigated  towards  the  interior 
for  more  than  ten  leagues.  ^ 

Col.  Don  Josef  Lacayo,  formerly  Governor  of  Nicaragua, 
entirely  agrees  withDiez  Navarro,  as  shown  by  his  report  on 
the  Lake  of  Nicaragua,  and  the  San  Juan  river  (Eelacion  de  la 
Laguna  de  Nicaragua  y  rio  de  San  Juan),  written  in  1745. 
Lacayo  affirms,  furthermore,  that,  of  the  three  branches  of 
the  San  Juan  river,  the  Colorado  river  is  the  most  abundant 
in  water,  and  is  the  most  accessible,  so  that  schooners  and 
large  vessels  can  easily  enter  it. 

Finally,  Senor  Ayon,  in  his  "  History  of  Nicaragua,"  re- 
futes both  Senor  Eivas  and  himself  in  four  chapters  of  Vol.  I 
of  his  work,  wherein  he  gives  the  name  of  Desaguadero  to 
the  San  Juan  de  Nicaragua  river.  ^ 

The  voluntary  errors  of  such  learned  statesmen  as  Senores 
Rivas  and  Ayon,  who,  without  taking  the  trouble  even  of 
consulting  a  geographical  dictionary,  locate  the  mouth  of  the 


^  Archives  of  ladies  of  Seville.  Package,  "  Guatemala,"  correspondence 
of  the  Governors  President,  years  1758  to  1771. 

Description  of  the  whole  coast  of  the  Northern  Sea  and  part  of  that  of 
the  Southern  Sea  of  the  Captaincy-General  of  this  Kingdom  of  Guatemala, 
made  by  Engineer  Don  Luis  Diez  Navarro  in  1743  and  1744. 

Peralta.  Costa  Rica  y  Colombia,  p.  178  (edition  de  luxe)  and  p.  163  (or- 
dinary edition). 

^  Manuscripts  in  the  Deposit©  Hidrografico  of  Madrid. 

^  See  Document  No.  63. 


43 

San  Juan  river,  or  Desaguadero,  far  to  the  south  of  the  Col- 
orado, in  the  valley  of  Matina,  at  more  than  twenty  leagues 
southeast  of  its  proper  place,  have  constituted  the  ground 
upon  which  the  supposed  rights  of  Nicaragua  rest,  and  have 
given  color  to  their  pretension  of  exclusive  sovereignty  over 
the  San  Juan  river  and  its  southern  bank. 

Long  and  troublesome  was  the  discussion  which  took  place 
between  the  two  Republics,  on  account  of  this  pretension, 
from  1838  to  1858,  in  which  the  signing  of  the  treaty  of  lim- 
its seemed  to  have  settled  the  question. 

According  to  that  treaty  the  right  bank  of  the  river,  from 
its  origin  in  the  lake  up  to  a  point  three  miles  from  Castillo 
Viejo,  belongs  to  Nicaragua.  From  that  point  to  the  sea, 
down  to  Punta  de  CastiUa,  the  whole  right  bank,  as  well  as 
the  delta  of  the  river,  belongs  to  Costa  Rica  ;  but  Nicaragua 
was  given  the  sovereignty  over  the  waters. 

As  it  is  seen,  Costa  Rica  made  a  very  important  cession  in 
favor  of  Nicaragua,  and  sacrificed  for  the  sake  of  concilia- 
tion and  fraternity  a  strip  of  territory  two  miles  wide  and 
more  than  one  hundred  miles  long,  from  the  neighborhood  of 
Castillo  Viejo  up  to  near  the  mouth  of  the  Sapoa  river,  de- 
viating thereby  its  boundary,  to  the  grave  detriment  of  its 
interests  and  territorial  rights,  from  the  shores  of  the  lake 
and  the  banks  of  the  river.  ^ 

This  treaty,  in  which  Costa  Rica  is  really  the  party  who 
gives,  because  it  has  been  proved  that  the  alleged  rights  of 
Nicaragua  lack  foundation  both  in  written  history  and  inter- 
national law,  was  concluded,  consummated,  and  complied  with 
by  both  parties  during  fourteen  years,  and  it  still  continues  to 
be  the  rule  or  basis  of  the  present  territorial  status  quo  ;  but 
Nicaragua,  not  contenting  herself  with  the  advantages  secured 
by  her,  fifteen  years  ago,  and  moved  by  the  desire  to  enter  into 


'  See  Executive  Doc.  No.  57,  House  of  Reps.,  49th  Congress,  2d  session. 
Mr.  Reynolds  to  the  President,  p.  12. 


44 

contracts  of  interoceanic  canals,  right  and  left,^  without  any 
restraint,  decided  to  argue  that  the  treaty  was  imperfect. 


^  In  1876,  or  early  in  1877,  the  Government  of  Nicaragua  was  negotiating 
at  the  same  time  for  the  construction  of  an  interoceanic  canal  with  Hon. 
Hamilton  Fish,  Secretary  of  State,  in  Washington,  with  Mr.  Henry 
Meiggs,  in  Lima,  and  with  Mons.  Aristide  P.  Blanchet,  a  notary  in  France. 
The  Government  of  Costa  Rica  contented  itself  with  informing  the  Gov- 
ernment of  the  United  States,  represented  by  the  illustrious  Gen.  Grant 
and  by  Mr.  Hamilton  Fish,  of  its  acceptance  of  the  basis  proposed  by  Mr. 
Fish. 


Chapter   IY. 

NEGOTIATIONS  FOR  THE  SETTLEMENT  OF  THE  QUESTION  OF  LIMITS,  FROM 
THE  DISSOLUTION  OF  THE  REPUBLIC  OF  CENTRAL  AMERICA  TO  THE  YEAR 
1858. 

During  the  whole  Federal  system  (1825-1839)  the  question 
of  Nicoya,  which  was  the  only  one  existing  between  Costa 
Eica  and  Nicaragua,  remained  in  suspension.  The  circum- 
stances, indeed,  were  not  favorable  for  the  latter  nation  to 
invite  discussion  upon  it.  It  was  known  that  the  unanimous 
opinion,  as  well  as  the  resolute  determination,  of  the  inhabi- 
tants of  Nicoya  was  to  remain  united  to  Costa  Rica  ;  and,  if 
the  question  would  have  been  urged,  the  National  Congress 
would  have  finally  ratified  the  annexation.  Such  a  result 
was  so  much  the  more  to  be  apprehended  as  the  credit 
which  Costa  Rica  had  won  through  its  ability,  prudence,  and 
moderation  in  the  discharge  of  its  Federal  duties,  stood  much 
higher  than  that  of  Nicaragua,  which  always,  and  at  all  times, 
had  been  the  prey  of  all  kinds  of  civil  disturbances. 

As  Nicaragua  could  expect  nothing  from  the  Federal  power 
in  reference  to  the  separation  of  Nicoya,  it  was  better  for 
her  to  keep  silent.  And  owing  to  this,  as  well  as  to. her  an- 
cient rivalry  with  Guatemala,  and  for  other  reasons,  her  aim 
was  then  to  destroy  the  Federation.  All  historians  agree  to 
the  fact  that  Nicaragua  distinguished  herself  in  that  respect. 

The  Federation  was  dissolved  in  1838  and  1839.  The 
Nicoyans  taking  an  advanced  step  in  opposition  to  the  pre- 
tensions of  Nicaragua,  and  at  the  end  of  fourteen  years  of 
incorporation  of  its  territory  into  Costa  Rica,  ratified  by  new 
acts  their  adhesion  to  Costa  Rica.  Upon  the  knowledge  of 
this  fact,  and  foreseeing  that  Nicaragua,  which  was  then  en- 
gaged in  the  revision  of  her  Constitution,  might  perhaps 
insert  in  it  some  provision  to  the  effect  that  Nicoya  formed 


46 

part  of  her  territory,  and  thus  give  occasion  to  some  conflict 
between  the  two  countries,  Costa  Eica  decided  to  establish  a 
Legation  at  Nicaragua,  and  sent  there  as  its  Minister  one  of 
its  very  first  public  men,  Sen  or  Don  Francisco  Maria  Orea- 
muno.  It  was  hoped  in  Costa  Rica  that  Nicaragua  should 
recede  from  her  attempt  to  ignore  the  .accomplished  facts, 
especially  when  seeing  the  manifest  decision  of  the  inhabi- 
tants of  Nicoya  not  to  submit  to  her  rule.  Senor  Oreamuno 
expressed  the  desire  that  the  perpetual"  annexation  of  Gua- 
nacaste  should  be  recognized  by  Nicaragua,  and  declared 
that  his  country  was  ready  to  defend  the  frontiers  of  the  San 
Juan  river,  the  great  Lake,  and  the  La  Flor  river. 

The  Nicaraguan  Government  could  not  allow  such  repre- 
sentations to  pass  unnoticed,  and  resorted  to  the  expedient 
of  letting  the  matter  remain  in  suspense.  No  conclusion 
was,  therefore,  reached,  but  the  Revised  Constitution  ex- 
pressed that  THE  LIMITS  OF  THE  COUNTRY  SHOULD  BE  FIXED  BY 
AN  ORGANIC  LAW,  WHICH  WOULD  BE  A  PART  OF  THE  CONSTITU- 
TION. It  was  avoided  in  this  way,  that  the  organic  law  of 
Nicaragua  would  contain  a  provision  declaring  that  the  dis- 
trict of  Nicoya  belonged  to  her.  According  to  its  own  pro- 
visions, the  fixing  of  the  limits  was  left  to  an  organic  law,  of 
secondary  ch^iracter,  to  be  enacted  afterwards.  The  idea 
entertained  by  Nicaragua  of  the  firmness  and  energy  of  the 
administration  of  General  Carillo  in  Costa  Rica  helped,  no 
doubt,  that  result. 

It  must  be  noticed  particularly  that  the  Constitution  of 
Nicaragua  of  1838  provided  nothing  permanently  in  regard 
to  limits  with  Costa  Rica.  This  is  a  fact  of  extreme  impor- 
tance, as  will  be  seen  hereafter. 

In  1843  Nicaragua  sent  to  Costa  Rica  a  legation,  in  charge 
of  Licenciate  Don  Toribio  Tijerino,  and  this  officer  pre- 
sented a  claim  for  the  restoration  of  the  district,  together  with 
its  products  and  accessions,  as  might  have  been  the  case  if 
the  claim  would  have  referred  to  a  simple  pledge.  But  he 
had  not  been  given  any  authority  to  make  or  to  entertain 


47 

any  proposition  of  arrangement,  and,  as  it  is  easy  to  con- 
ceive, his  mission  did  not  bring  forth  any  fruit. 

In  1846  Costa  Kica  had  to  pass  through  an  exceptional 
crisis.  Coffee,  its  principal  export  product,  had  experienced 
remarkable  depreciation  in  the  foreign  markets,  and  could 
not  stand  competition,  owing  to  the  high  freight  that  it  had  to 
pay  when  carried  by  the  way  of  Cape  Horn.  It  was  of  vital 
importance,  and  worthy  of  any  sacrifice  whatever,  to  have  a 
passage  open  to  the  Northern  Sea,  that  is,  the  Atlantic  Ocean. 
The  old  port  of  Matina  could  not  answer  the  purpose,  owing 
to  insuperable  obstacles,  and  no  recourse  w^as  left  except 
making  the  exports  through  San  Juan  del  Norte. 

As  shown  before,  Costa  Rica  had  always  had  a  perfect  and 
indisputable  right  of  joint  ownership  in  the  San  Juan  river ; 
but,  as  the  harbor  and  bay  were  then  occupied  by  Nicaragua, 
Costa  Rica  decided  to  make  an  effort,  and  seek  for  a  settle- 
ment, which,  setting  aside  interminable  discussions,  would  en- 
able its  Government  to  carry  into  effect  the  purpose  above 
referred  to.  To  this  end  it  sent  to  Nicaragua  Senores  Madriz 
and  Escalante,  with  such  instructions  as  proper,  to  treat  with 
her  Government. 

The  pretensions  of  Nicaragua  were  so  exorbitant  that  neither 
the  Government  nor  the  Congress  of  Costa  Rica,  in  spite  of 
their  determination  to  yield  all  that  w^as  practicable  for  the 
sake  of  obtaining  an  immediate  adjustment,  could  approve 
of  the  arrangements  made.  Then  it  was  when  Nicaragua,  for 
the  first  time,  carried  her  territorial  pretensions  on  the  side 
of  the  San  Juan  river  as  far  as  the  neighborhood  of  Matina, 
and  when  she  suggested,  as  a  compromise,  that  the  territory 
between  Matina  and  the  San  Juan  river  should  be  divided 
equally  between  both  countries.  She  demanded  besides  a 
tribute  to  be  paid  to  her  for  the  transit  of  Costa  Rican  mer- 
chandise through  the  San  Juan  river ! 

In  1848,  the  Government  of  Costa  Rica  made  another  at- 
tempt to  obtain  from  Nicaragua  an  equitable  settlement,  and 
accredited  to  her  a  Legation  which  it  entrusted  to  Licenciate 


48 

Don  Felipe  Molina.  Nicaragua  appointed  on  her  side,  to 
represent  her  in  the  negotiations,  Senor  Don  Gregorio  Juarez. 
Sen  or  Molina  submitted  several  projects  which  he  himself 
considered  afterwards  to  have  been  of  unreasonable  conde- 
scension ;  but  nothing  was  obtained.  "  Senor  Juarez  says 
Molina  (Memoria,  page  37)  agreed  to,  and  signed,  one  day,  a 
convention,  and  on  the  following  day  he  came  and  withdrew 
his  signature,  and  explained  that  his  Government  had  disap- 
proved of  his  action." 

Subsequently,  while  in  London,  Senor  Molina  received  in- 
structions' of  his  Government  to  enter  into  negotiations  with 
Senor  Castellon,  the  Minister  of  Nicaragua,  and  the  latter 
Government  was  urged  to  instruct  him  accordingly.  But  no 
instructions  were  received  by  Senor  Castellon. 

In  1852  the  Washington  Cabinet,  through  its  Ministers, 
Mr.  Bancroft  and  Mr.  Lawrence,  kindly  offered  its  mediation, 
but  its  good  offices  did  not  prove  to  be  more  successful  than 
all  the  former  efforts.  The  negotiations  initiated  in  this  re- 
spect were  afterwards  continued  with  Senor  Marcoleta,  the 
Nicaraguan  Charge  d' Affaires  at  Washington  ;  but  this  officer 
demanded  that  Costa  Rica  should  sacrifice  either  the  district 
of  Nicoya,  which  by  no  means  could  be  given  up,  or  the  right 
bank  of  the  San  Juan  river,  and  the  river  itself,  which  since 
the  foundation  of  the  colony  had  been,  and  is,  one  of  its 
principal  exits  to  the  Atlantic,  and  which  will  afford  to  it  a 
proper  communication  with  both  seas  when  the  work  of  the 
Interoceanic  Canal  shall  be  accomplished. 

Under  this  condition  of  affairs,  and  owing  to  a  great  ex- 
tent to  the  stubbornness  of  Nicaragua  in  attempting  to  exclude 
Costa  Bica  from  the  San  Juan  river,  Nicaragua  fell  into  the 
hands  of  the  adventurers  who  had  gone  there  under  the 
leadership  of  William  Walker,  whom  the  people  of  Leon  had 
received,  strewing  flowers  before  him  in  his  passage. 

The  dignity  and  sovereignty  of  Central  America  having 
been  trampled  down  in  this  way,  Costa  Bica  was  first  in  get- 
ting ready  to  defend  the  soil  of  the  common  country.     What 


49 

Costa  Eica  did,  and  what  enormous  sacrifices  it  had  to  suffer 
for  the  expulsion  of  Walker,  history  has  recorded.  The 
single  fact  that  the  struggle,  together  with  the  cholera  which 
it  brought  to  the  country,  carried  away  from  Costa  Rica,  ac- 
cording to  the  best  calculations,  fifteen  thousand  precious 
lives,  will  be  sufficient  to  give  an  idea  of  the  magnitude  of 
those  sacrifices.  1 

If  Nicaragua  suffered  in  like  proportion,  or  more,  perhaps, 
than  Costa  Rica,  the  undeniable  fact  remains,  however,  that 
Costa  Rica  had  taken  no  part  in  calling  the  foreigners. 

The  Walker  war  had  not  yet  terminated  when  the  Nicara- 
guan  people  began  to  show  their  distrust  of  Costa  Rica,  and 
demanded  her  to  abandon  the  positions  which  she,  with  the 
blood  of  her  children,  had  conquered  on  both  banks  of  the 
San  Juan  river,  up  to  that  time  an  open  road  for  the  in- 
vaders. It  was  not  easy  for  Costa  Rica  to  carry  her  sacrifices 
to  such  an  extreme,  much  less  when  each  mail  brought  news 
of  a  fresh  invasion,  and  when  the  efforts  of  Costa  Rica  in 
opposing  Walker  and  his  followers  had  naturally  caused  her 
to  incur  their  profound  hatred  and  exposed  her  to  their  ven- 
geance. 

Things  having  come  in  this  way  to  such  a  condition  as  to 
render  a  rupture  between  the  two  countries  almost  inevitable, 
Costa  Rica,  although  at  that  time  stronger  than  Nicaragua,  de- 
cided to  resort  to  conciliatory  measures,  and  by  decree  of  No- 
vember 9, 1857,  invited  all  the  governments  of  Central  America 
to  put  an  end  to  the  dispute,  by  the  decision  of  a  body  of  rep- 
resentatives appointed  by  them  to  that  effect,  who  should 
agree  by  unanimous  vote  to  all  matters  of  common  interest. 
Costa  Rica  could,  but  did  not  want  to,  dictate  to  Nicaragua. 
And  as  it  was  impossible  for  her  to  sacrifice  her  own  cause, 
and  for  the  common  safety  of  Central  America  it  was  neces- 
sary that  peace,  union,  and  harmony  should  be  preserved, 


^  Streber.     Census  of  Costa  Rica,  year  1864. 
Walker.     War  of  Nicaragua,  &c. 
4 


^0 

she  preferred  that  all  pending  questions  should  be  treated 
before  a  Central  American  Diet. 

Subsequently  to  this  step,  which  was  fruitless,  and  when 
no  possibility  appeared  to  exist  of  preventing  the  question 
from  being  settled  by  force  of  arms,  when  further  negotiations 
entrusted  to  Don  Emiliano  Quadra  and  General  Don  Jose 
Maria  Caiias  had  also  failed,  the  Government  of  the  Republic 
of  Salvador  had  the  generosity  to  offer  its  mediation,  and  this 
was  gladly  and  gratefully  accepted  by  both  parties.  The 
interposition  of  Salvador  brought  things  once  more  upon 
the  ground  of  conciliation. 


Chapter    Y. 

CONTINUATION    OF    THE    SUBJECT    OF    THE    FOKEGOING   CHAPTER. 

The  Minister  appointed  by  Salvador,  who  was  Colonel 
Don  Pedro  Romulo  Negrete,  made  first  his  appearance  be- 
fore the  Cabinet  of  Managua,  then  he  came  to  Costa  Rica, 
then  he  returned  to  Nicaragua,  and  always  and  in  every  re- 
spect he  did  all  that  could  be  desired  to  make  his  mission  a 
success. 

On  the  part  of  Costa  Eica,  General  Don  Jos^  Maria  Canas 
was  appointed  to  treat  the  question.  A  similar  appointment 
was  made  by  Nicaragua  in  the  person  of  Doctor  Don  Maximo 
Jerez.  And  both  Ministers,  in  union  with  Colonel  Don 
Pedro  R.  Negrete,  met  at  San  Jos^  of  Costa  Rica.  That 
was,  no  doubt,  the  last  and  supreme  effort  of  both  countries, 
with  the  efficient  assistance  of  a  friendly  government,  to  put 
an  end  to  a  question  which  was  both  ancient  and  apt  to  give 
occasion  to  a  fratricidal  war. 

Then  a  settlement  was  reached.  True  it  is  that  it  abridged 
the  rights  of  Costa  Rica  by  throwing  its  limits  back  far  away 
from  the  Great  Lake,  the  La  Flor  river,  and  in  part  from 
the  banks  of  the  San  Juan  river  itself — limits  all  of  them 
which,  as  shown  in  the  preceding  chapters,  indubitably  be- 
longed to  it ;  but  it  is  true  also  that  the  rights  of  Costa  Rica 
as  to  the  rest  were  recognized,  and  that  by  the  settlement, 
peace,  harmony,  and  good  order  between  Costa  Rica,  Nicar- 
agua, and  the  whole  of  Central  America,  were  to  be  secured. 

The  line  drawn  by  the  Canas-Jerez  treaty  was  marked  as 
follows : 

"  The  dividing  line  between  the  two  Republics,  starting 
from  the  Northern  Sea,  shall  begin  at  the  extreme  end  of 
Point  Castilla,  at  the  mouth  of  the  San  Juan  de  Nicaragua 


52 

river,  and  it  shall  run  along  the  right  bank  thereof  up  to  a 
certain  point,  three  English  miles  distant  from  Castillo  Viejo 
(the  old  castle),  said  distance  to  be  measured  from  the  exterior 
works  of  that  fortress  to  the  point  above  named.  From  here, 
and  taking  the  said  exterior  works  as  centre,  a  curve  shall  be 
drawn  which  shall  run  all  along  the  said  works  parallel  to 
them,  always  at  a  distance  of  three  English  miles,  until  reach- 
ing another  point  beyond  the  castle  and  two  miles  distant 
from  the  right  bank  of  the  river.  Hence,  and  always  keeping 
at  the  distance  of  two  miles  from  the  right  bank  of  the  river, 
and  following  all  its  windings,  it  shall  continue  westwards  as 
if  to  meet  the  Sapoa  river  until  reaching  the  source  or  origin 
of  the  said  San  Juan  river  at  the  lake.  From  here  it  shall 
continue  parallel  to  the  right  shore  of  the  lake,  always  at 
the  distance  aforesaid,  until  reaching  the  Sapoa  river,  where 
the  parallelism  shall  cease  and  the  line  shall  coincide  with 
the  stream.  From  the  point  of  contact,  which  shall  be  as 
aforesaid,  two  miles  distant  from  the  lake,  an  astronomical 
straight  line  shall  be  drawn  up  to  the  centric  point  of  the 
Salinas  Bay,  on  the  Southern  Sea,  w^here  the  frontier  between 
the  two  contracting  Eepublics  shall  terminate." 

As  it  is  seen,  the  above  line  caused  Costa  Rica  to  recede 
from  her  natural  and  legitimate  frontiers. 

The  extent  of  territory  which  Costa  Rica  gave  up  in  this 
way  is  shown,  therefore,  to  be  considerable ;  but  its  impor- 
tance certainly  would  be  undervalued  if  it  were  to  be  appre- 
ciated solely  by  its  superficial  measurement.  The  sacrifice 
will  not  be  estimated  rightly  except  by  taking  into  account 
the  topographical  situation  of  these  tracts  of  lands  and  the 
fact  that  they  lay  on  the  banks  of  a  river  which  is  destined 
to  be  the  principal  interoceanic  canal  in  the  world,  and  on 
the  shores  of  a  first-class  mediterranean  sea,  as  the  Lake  of 
Nicaragua  is,  and  on  the  isthmus  between  that  lake  and  the 
Pacific  Ocean,  through  Avhich  the  above  said  canal  will  run. 

It  was  provided  in  the  treaty  that  Costa  Rica  should  have 
the  right  to  navigate  the  San  Juan  river  from  its  mouth  on 


53 

the  ocean  up  to  three  miles  this  side  of  Castillo  Viejo  and 
the  community  of  sovereignty  on  the  bays  of  San  Juan  and 
of  Salinas. 

General  Don  Tomas  Martinez,  Provisory  President  of  Nic- 
aragua, had  been  invested  by  the  Constituent  Assembly  of  that 
Republic,  at  that  time  in  session,  to  which  he  had  reported  in 
full  the  situation,  ample  and  unlimited  faculties  to  get  over  its 
difficulties  as  he  might  deem  best,  by  means  of  treaties,  which 
would  not  need  ratification  by  the  same  Assembly,  except  only 
in  case  that  the  agreements  made  and  entered  into  by  him 
should  prove  to  be  at  variance  with  the  secret  instructions 
simultaneously  communicated  to  him.  Then,  and  only  then, 
the  ratification  by  the  Assembly  was  necessary. 

In  compliance  with  this  decree.  President  Martinez  ap- 
proved of  and  ratified  the  treaty  of  April  15,  1858.^ 

No  one  has  ever  said  that  he  exceeded  his  instructions. 

The  decree  by  which  he  approved  of  and  ratified  the  treaty 
reads  as  follows : 

"  Tomas  Martinez,  the  President  of   the  Republic  of  Nic- 
aragua : 

"  Whereas,  General  Maximo  Jerez,  Envoy  Extraordinary 
and  Minister  Plenipotentiary  of  Nicaragua  to  the  Republic 
of  Costa  Rica,  has  adjusted,  agreed  upon,  and  signed,  on  the 
fifteenth  instant,  a  treaty  of  limits,  fully  in  accordance  with 
the  hases  which,  for  that  purpose^  were  trananiitted  to  him  hy 
way  of  instructio7is  ;  finding  that  said  treaty  is  conducive  to 
the  peace  and  prosperity  of  the  two  countries,  and  recipro- 
cally useful  to  both  of  them,  and  that  it  facilitates,  by  remov- 
ing all  obstacles  that  might  prevent  it,  the  mutual  alliance  of 
both  countries,  and  their  unity  of  action  against  all  attempts 
of  foreign  conquest ;  considering  that  the  Executive  has  been 
duly  and  competently  authorized,  by  legislative  decree  of  Feb- 
ruary 26th  ultimo,  to  do  everything  conducive  to  secure  the 


See  Doc.  No.  16. 


54 

safety  and  independence  of  the  Eepublic ;  and  by  virtue,  fur- 
thermore, of  the  reservation  of  faculties  spoken  of  in  the 
executive  decree  of  the  17th  instant : 

"  Does  hereby  ratify  each  and  all  of  the  articles  of  the 
treaty  of  limits  made  and  concluded  by  Don  Jose  Maria 
Canas,  Minister  Plenipotentiary  of  the  Government  of  Costa 
Rica,  and  Don  Maximo  Jerez,  Minister  Plenipotentiary  of 
the  Supreme  Government  of  Nicaragua,  signed  by  them  on 
the  15th  instant,  and  ratified  by  the  Costa  Rican  Govern- 
ment on  the  16th.  And  the  additional  act  of  the  same  date 
is  likewise  ratified. 

"  Given  at  Rivas  on  the  26th  day  of  April,  1858. 

"  TOMAS  MARTINEZ. 

"  GREGORIO  JUAREZ, 

"Secretary.-' 

On  the  side  of  Costa  Rica  the  treaty  was  ratified  without 
difficulty  ;  and  as  its  conclusion  was  deemed  to  be  a  happy 
event  for  Central  America,  and  more  especially  for  the  Re- 
publics immediately  concerned  in  it,  the  exchange  of  the 
ratifications  was  made  with  unusual  solemnity  by  the  Presi- 
dents of  the  two  Republics  personally,  attended  by  their  re- 
spective Secretaries  of  State,  and  with  the  intervention  of 
the  Mediator  Minister,  Colonel  Negrete. 

With  the  act  of  exchange  of  these  ratifications,  the  old 
question,  which  so  often  had  caused  both  countries  to  come 
to  the  very  verge  of  unpleasant  situations,  was  settled  and 
set  at  rest. 

The  Nicaraguan  Executive  took,  however,  a  step  further, 
and  submitted  the  treaty  to  the  Assembly.  This  was  done, 
not  because  necessary,  for  the  treaty,  according  to  the  terms 
of  the  decree  of  the  Assembly,  was  valid  without  such  a 
requisite ;  nor  because  such  a  submission  was  required  as  a 
matter  of  form,  since  the  ratifications  had  been  exchanged, 
and  this  exchange  is  a  formality  which  never  follows,  but 
precedes  legislative  sanction  ;  but  because  of  the  importance 


55 

of  the  matters  involved  in  it.  And  the  Assembly  came  then 
and  added  its  supreme  sanction  to  the  treaty  by  decree,  which 
reads  as  follows : 

"NUMBEK   62. 

"The  Constituent  Assembly  of  the  Eepublic  of  Nicaragua, 
in  use  of  the  legislative  powers  vested  in  it,  decrees : 

"Article  only.  The  treaty- of  limits  concluded  at  San  Jose 
on  the  15th  of  April,  instant,  between  General  Don  Maximo 
Jerez,  Minister  Plenipotentiary  from  this  Republic,  and  General 
Don  Jose  Maria  Cahas,  Minister  Plenipotentiary  from  the 
Republic  of  Costa  Rica,  with  the  intervention  of  Colonel  Don 
Pedro  Eomulo  Negrete,  Minister  Plenipotentiary  from  Sal- 
vador, IS  HEREBY  APPROVED. 

"  To  THE  Executive  Power. 

"  Given  at  the  Hall  of  Sessions  of  the  Constituent  Assem- 
bly in  Managua,  on  the  28th  of  May,  1858 — Hermenegildo 
Zepeda,  Vice-President ;  Jose  A.  Mejia,  Secretary  ;  J.  Miguel 
Cardenas,  Secretary. 

"  Thereupon  :  Let  it  be  executed.  National  Palace,  Man- 
agua, June  4th,  1858 — Tomas  Martinez." 

In  consequence  thereof  the  treaty  was  published  in  the 
Official  Journal,!  ^^d  the  text  thereof  was  communicated  as 
a  law  of  the  EepubHc  to  the  diplomatic  body,  both  foreign 
and  national. 

The  same  thing  was  done  at  Costa  Eica. 

The  Constituent  Assembly  framed  and  enacted  subsequently 
the  Constitution  of  the  Eepublic,  and,  by  its  Article  I,  de- 
clared that  all  special  laws  on  limits  formed  part  of  the  Con- 
stitution. By  virtue  of  this  provision  the  treaty  of  April  15, 
1858,  was  clearly  and  indisputably  embodied  in  the  funda- 
mental charter  of  that  country. 

The    Costa  Eican   Constitution,  which,  in  the   following 


^Gaceta  de  Nicaragua,  No.  15,  May  38,  1851. 


56 

year,  December  26,  1859,  was  promulgated,  in  describing  the 
limits  of  the  Republic  on  the  side  of  Nicaragua,  set  forth 
the  same  line  as  established  by  the  treaty  of  April  18, 1858  ;i 
and  this  solemn  enactment  did  not  give  rise  to  any  protest 
on  the  part  of  Nicaragua. 

The  treaty  continued  to  be  in  force  and  observed  by  both  par- 
ties for  fourteen  years,  during  which  it  served  as  a  basis  for  the 
Constitutions,  laws,  and  mutual  relations  of  the  two  countries. 

In  1869,  when  the  men  and  the  circumstances  of  1858  had 
long  passed  away,  Costa  Rica  enacted  a  new  Constitution,  ^ 
and  defined  by  it  its  frontier  on  the  side  of  Nicaragua,  as  had 
been  done  before,  in  accordance  with  the  treaty  of  1858  ;  and 
no  protest  was  heard,  either  from  the  political  powers  of 
Nicaragua,  nor  even  from  the  private  press  of  that  country. 
On  the  contrary,  some  documents  of  utmost  importance, 
corroborative  of  the  strength  and  vigor  of  the  treaty  of  limits, 
emanating  from  the  Nicaraguan  Congress  and  Executive,  were 
published  in  that  year. 

The  germ  of  the  dispute  sprung  up  out  of  the  displeasure 
which  Nicaragua  experienced  with  the  measures  taken  by  the 
administration  of  Don  Jesus  Jimenez,  some  time  afterwards, 
to  stop  the  destruction,  by  inhabitants  of  Nicaragua,  of  cer- 
tain forests  in  the  Costa  Rican  territory,  between  the  regions 
of  the  Rio  Frio  river  and  the  plains  of  Tortuguero,  which  the 
former  used  to  invade  in  search  of  rubber.  That  circum- 
stance prepared  or  opened  the  way  to  the  ignoring  of  the 
treaty ;  but  the  withdrawal  by  Costa  Rica,  in  1870,  of  her 
adherence  to  the  agreement  Ayon-Chevalier,  decided  it. 

Don  Tomas  Ayon,  as  Minister  of  Nicaragua  in  Paris,  had 
entered  into  an  agreement  with  Mr.  Michel  Chevalier  for  the 
building  of  a  canal  in  the  valley  of  the  San  Juan  river,  until 
reaching  the  Pacific  Ocean.  Chevalier  and  Ayon,  well  know- 
ing the  rights  of  Costa  Rica,  and  the  terms  of  the  treaty  of 
1858,  had  set  forth  by  one  of  the  clauses  of  their  agreement 


'  See  Document  No.  63.  ^  See  Document  No.  63. 


57 

that  the  consent  of  Costa  Eica  was  essential  for  its  validity. 
Costa  Rica  consented  to  it,  but  Nicaragua  delayed  for  a 
while,  and  soon  it  was  discovered,  also,  that  Mr.  Chevalier 
had  no  means  to  comply  with  the  obligations  he  had  con- 
tracted.    Thereupon  Costa  Eica  withdrew  its  consent. 

This  step  irritated  Nicaragua,  or  rather  Senor  Ayon,  who 
was  then  the  Nicaraguan  Secretary  for  Foreign  Relations,  and 
had  been  the  author  of  the  agreement ;  and  considering  that 
it  would  be  better  for  Nicaragua  to  act  by  herself,  independ- 
ently of  Costa  Rica,  in  all  matters  concerning  interoceanic 
canals,  the  Nicaraguan  Executive  reported  to  Congress  and 
set  forth  that  it  entertained  some  doubts  about  the  validity 
of  the  treaty  of  limits,  which,  in  its  opinion,  ought  to  have 
been  ratified  by  two  subsequent  legislatures,  and  had  been 
only  by  one. 

The  Nicaraguan  Congress  heard,  not  without  profound  sur- 
prise, these  new  and  strange  views  about  the  treaty,  but  de- 
cided nothing  whatever  in  the  sense  of  its  validity,  or  nullity. 
It  followed  that  course  which  seemed  to  it  to  be  most  pru- 
dent and  uncommital,  which  was  to  keep  silent.  Sixteen  years 
have  passed  since,  and  the  Nicaraguan  Congress  has  never 
dared  to  pronounce  itself  in  favor  of  the  alleged  nullity,  al- 
though the  relations  between  the  two  countries  have  been 
sometimes  strained  to  the  extreme  that  in  1876  a  rupture 
seemed  to  be  imminent,  and  that  for  a  long  time  all  official  and 
commercial  intercourse  between  them  remained  suspended. 

Congress  by  this  action,  besides  postponing  a  disagreeable 
solution  of  the  problem,  indirectly,  but  plainly,  acknowledged 
that  such  alleged  doubts  were  groundless. 

Subsequent  to  the  denunciation  of  the  treaty  there  were 
still  two  attempts  of  arrangement.  One  took  place  in  1872, 
when  the  Presidents  of  Costa  Rica  and  Nicaragua,  General 
Don  Tomas  Guardia  and  Don  Yicente  Quadra,  held,  at  the 
request  of  the  former,  an  interview  at  the  City  of  Rivas. 
And  the  second  was  the  treaty  Castro-Navas  of  January  19, 
1884.     Both  projects  failed. 


58 

Different  questions,  arising  out  of  the  anomalous  condition 
in  whicli  the  rights  of  both  parties  found  themselves  under 
these  circumstances,  such  as  trespasses  on  the  frontiers  on 
one  and  the  other  side,  questions  on  navigation  of  the  Colo- 
rado river,  and  also  of  the  San  Juan,  &c.,  &c.,  have  been  dis- 
cussed during  these  sixteen  years.  They  all  depended  upon 
the  principal  question,  which  is  the  treaty  ;  but  they  all  have 
been  decided  by  common  agreement,  and  given  origin  to  the 
status  quo  of  1858.  So  it  is  that,  even  under  these  circum- 
stances, if  it  is  true  that  there  has  been  a  protracted  discus- 
sion between  both  countries  on  the  theoretical  validity  of  the 
treaty  of  limits,  it  is  also  true  that,  practically,  the  treaty  of 
limits  has  never  ceased  to  regulate,  or  govern,  the  relations 
between  Costa  Eica  and  Nicaragua. 


PART   SECOND. 


PAET  SECOND. 

ELUCIDATION  OF  THE  PRINCIPAL  POINT. 


Chapter    I. 

EXPOSITION  OF  THE  ARGUMENTS    MADE    BY   NICARAGUA  IN  SUPPORT  OF  THE 
IDEA  THAT  THE  TREATY  OF  1858  IS  NOT  VALID. 

What  reasons  has  the  Government  of  Nicaragua  alleged, 
in  support  of  its  pretension,  that  the  stipulations  of  the  treaty 
of  1858  are  not  binding  upon  it  ? 

That  the  said  treaty,  although  ratified  by  the  Assembly  of 
1858,  was  not  ratified  as  it  ought  to  have  been,  to  be  valid, 
by  the  subsequent  Legislature  ; 

That  the  Government  of  Salvador,  an  essential  party  to  the 
treaty  because  of  having  interposed  its  guarantee,  did  not 
ratify  it ; 

And  that  the  said  treaty  deeply  wounds  the  sovereignty  of 
Nicaragua,  and  is,  to  a  great  degree,  injurious  to  her  inter- 
ests, and  depressive  of  her  dignity  and  autonomy. 

No  systematic  and  complete  exposition  of  the  reasonings 
of  Nicaragua  against  the  treaty  can  be  found  anywhere  in 
the  diplomatic  correspondence  of  the  Nicaragua  foreign  of- 
fice ;  and  for  this  reason  I  have  been  myself  compelled,  in 
order  to  speak  intelligently,  to  peruse  all  that  has  been  writ- 
ten on  the  subject,  whether  officially  or  unofficially,  in  the 
Republic  of  Nicaragua. 

I  shall  try  to  set  forth,  as  faithfully  as  possible,  all  the  ar- 
guments that  have  been  made. 

It  is  said  that  the  treaty  of  1858  was  signed  under  the 
sway  of  the  Constitution  of  1838  ;  and  that,  therefore,  in 
order  to  make  the  treaty  binding  upon  Nicaragua,  each  and 


62 

all  of  the  formalities  and  requisites  provided  for  by  the  Con- 
stitution ought  to  have  been  complied  with.  Every  irregu- 
lar proceeding  not  established  and  sanctioned  by  that  Con- 
stitution was  illegal,  unauthorized,  and  productive  of  no  effect. 

By  the  treaty,  Nicaragua  ceded  to  Costa  Rica  a  great  por- 
tion of  the  national  territory,  as  defined  by  her  Constitution, 
namely,  the  whole  district  of  Nicoya,  and  a  portion  of  the 
right  bank  of  the  San  Juan  river.  And  that  cession  involved 
an  amendment  to  the  Constitution,  for  which,  according  to 
the  express  provisions  of  the  same,  the  national  consent  was 
required  to  be  given  not  only  by  one  Assembly  but  by  two 
subsequent  Legislatures.  The  Assembly  of  1858  which  ap- 
proved the  treaty  did  not  act  as  a  constituent  assembly,  but 
as  a  legislative  power ;  and  so  it  itself  declared  in  the  pre- 
amble of  its  decree  of  ratification,  therefore  establishing  in 
an  implicit  way  the  necessity  of  a  second  approval.  In  com- 
pliance with  Article  149  of  the  Constitution,  the  treaty  ought 
to  have  been  ratified  by  two  Legislatures  ;  but  it  was  ratified 
only  by  one.  It  was  not  sufficient  that  some  of  the  formalities 
required  should  have  been  complied  with  ;  but  it  was  neces- 
sary* that  all  of  them,  without  any  exception,  should  have 
been  fulfilled.  The  treaty  of  limits  never  reached  perfection ; 
it  never  had  any  effect  between  the  contracting  parties  ;  it  al- 
ways remained  in  the  condition  of  a  project  or  a  proposition  ; 
it  has  never  been  taken  as  a  basis  for  legislation,  or  for  regu- 
lating the  relations  between  Nicaragua  and  Costa  Rica ;  and  if 
Nicaragua  has  given  notice  to  Costa  Rica  of  certain  conven- 
tions, entered  into  by  her,  in  regard  to  interoceanic  canals, 
she  has  done  so,  not  by  virtue  of  the  treaty,  but  because  of 
the  desire  that  the  enterprise  of  the  canal  would  not  find  any 
obstacle  in  a  dispute  about  limits  which  ought  to  be  smothered 
beneath  the  great  interests  to  be  created  by  that  colossal 
work.  And  the  proof  that  the  treaty  never  reached  perfec- 
tion is  that  Costa  Rica  in  1869  asked  Nicaragua  to  ratify  it. 

This  is  the  argument  of  the  Government  of  Nicaragua,  set 
forth  in  all  its  force,  in  regard  to  the  first  point.     As  to  the 


63 

second,  which  is  the  alleged  nullity  of  the  treaty  of  limits 
for  want  of  ratification  by  the  Government  of  Salvador ;  and 
as  to  the  third,  which  is  the  alleged  injury  to  the  interest,  au- 
tonomy, and  dignity  of  the  Kepublic,  the  Nicaraguan  Foreign 
Office  has  limited  itself  to  make  only  assertions,  without 
stating  a  fact,  or  giving  a  single  proof,  or  showing  any  reason 
upon  which  they  may  be  founded. 

But  as  the  Nicaraguan  ex-Secretary  of  State,  Don  Tomas 
Ayon,  the  father  and  creator  of  the  present  controversy, 
published  a  pamphlet  entitled,  "  Considerations  on  the  ques- 
tion of  territorial  limits  between  the  Kepublics  of  Nicaragua 
and  Costa  Rica,"  in  which  he  extensively  occupied  himself  in 
the  discussion  of  this  point,  I  have  thought  it  pertinent  to 
refer  to  it  in  this  place,  and  show  the  manner  of  his  reasoning. 

"  Nicaragua  found  herself,"  he  says,  "  absolutely  prostra- 
ted by  both  the  severe  civil  war  of  1854  and  the  national  war 
against  the  filibusters ;  the  treasury  was  empty  ;  there  was 
no  armament ;  discouragement  had  taken  possession  of  all 
minds ;  the  heart  of  the  Nicaraguans  palpitated  still  with 
gratitude  for  the  co-operation  of  Costa  Rica  in  the  national 
war  ;  and  under  these  circumstances  the  President  of  Costa 
Rica,  Don  Juan  Rafael  Mora,  made  his  appearance,  and  with 
arms  in  his  hands  demanded  a  treaty  of  limits,  in  which 
Nicaragua  should  cede  to  Costa  Rica  as  much  as  he  was  willing 
to  ask.  So  it  w^as  done,  and  the  treaty  of  April  15,  1858,  was 
the  painful  miscarriage  brought  about  by  that  act  of  violence." 

But  Nicaragua  wanted  to  be  protected  against  new  sur- 
prises on  the  unpopulated  parts  of  the  banks  of  the  river  and 
on  the  lake,  and  required  that  the  two  nations  should  bind 
themselves  not  to  wage  at  any  time,  under  any  circumstances, 
even  in  a  state  of  war,  hostilities  of  any  kind  against  each 
other,  either  on  the  port  of  San  Juan  del  Norte,  nor  on  the 
San  Juan  river,  or  the  lake  of  Nicaragua  ;  and  the  Govern- 
ment of  Salvador,  through  Minister  Senor  Negrete,  guaran- 
teed the  faithful  and  exact  compliance  with  that  provision. 

That  special  guarantee  caused  the  Government  of  Salva- 


64: 

dor  to  become  one  of  the  contracting  parties ;  but  the  treaty 
was  not  ratified  either  bj  the  Executive  nor  by  the  Congress 
of  Salvador. 

It  is  known  that  all  the  clauses  of  a  treaty  are  considered 
as  conditions  of  each  other,  and  that  if  one  of  them  fails  the 
whole  treaty  fails.  The  guarantee  was  a  condition  upon  which 
Nicaragua  contracted  an  obligation,  and  as  it  failed  Nicaragua 
cannot  be  considered  as  bound  to  respect  the  treaty. 

Every  clause  in  a  treaty  has  the  same  force  as  a  condition, 
the  failure  in  the  performance  of  which  invalidates  the  whole. 

It  is  a  truth  beyond  discussion  that  a  treaty  has  no  eifect 
until  the  suspensive  condition  therein  contained  is  complied 
with.  Therefore,  as  long  as  the  ratification  of  the  treaty  of 
limits  by  the  Government  of  Salvador  is  not  proved,  no  one 
of  the  contracting  States  must  consider  itself  bound  by  it. 

It  is  indubitable  that,  even  if  the  treaty  of  limits  had  been 
ratified  by  Nicaragua,  such  ratification  would  not  have  been, 
sufficient  to  carry  it  into  execution,  since  it  was,  besides,  nec- 
essary that  the  Government  of  Salvador,  which  intervened  as 
guarantor  or  surety  for  the  fulfilment  of  Article  IX,  should 
ratify  the  treaty.     Therefore  the  treaty  of  limits  has  no  eflect. 

Such  is  the  conclusion  reached  in  the  statement  made  by 
the  Nicaraguan  ex-Secretary  of  State,  Don  Tomas  Ayon. 

As  to  the  last  point,  neither  the  Government  nor  anything 
printed  have  gone  beyond  the  mere  assertion  of  the  facts 
without  proof  or  explanations,  as  above  stated. 

The  arguments  of  the  Government  of  Nicaragua  to  con- 
sider itself  released  from  the  obligations  of  the  treaty  of 
1858  being,  therefore,  known  in  a  general  way,  it  is  time  to 
enter  into  its  analysis  and  refutation  ;  and  this  I  shall  do, 
dividing  the  matter  in  as  many  chapters  as  are  required  to 
convey  a  clear  idea  of  the  subject. 


Chaptek   II. 

THE  TREATY  OF  LIMITS  WAS  NOT  MADE  UNDER  THE  SWAY  OF  ANY  CONSTI- 
TUTION, BUT  UNDER  A  GOVERNMENT  TEMPORARILY  ENDOWED  WITH  UN- 
LIMITED POWERS. 

The  treaty  of  April  15,  1858,  was  not  concluded,  approved, 
ratified,  promulgated  and  carried  into  execution  under  the  sway 
of  the  Constitution  of  1838,  but  under  the  extraordinary  and 
transitory  circumstances  of  a  regime  in  which  the  Constituent 
Assembly  of  that  year  exercised,  in  an  unlimited  manner,  the 
whole  power  of  the  National  Government — a  regime  which 
was  created,  subsequent  to  the  civil  struggles  of  1854  to 
1857,  by  the  fusion  and  harmonization  of  the  two  parties, 
which  under  the  names  of  Conservatives  and  Democrats,  or 
Granadine  and  Leonese,  had  made  on  each  other  until  then 
uncompromising  war. 

The  Nicaraguan  Government  of  1858  was  not  born  out  of 
the  Constitution  of  1838,  nor  out  of  that  of  1853,  but  out  of 
a  revolution ;  and  it  Avas  simply  what  in  the  public  law  is  called 
a  de  facto  government.  So  it  is  easy  to  prove,  by  simply  re- 
membering the  political  vicissitudes  of  Nicaragua  during  the  s 
three  years  of  her  noisy  civil  war.  ^ 

On  the  5th  of  May,  1854,  the  legitimate  government  of 
Nicaragua  had  been  intrusted  to  General  Don  Fruto  Cha- 
morro,  who  had  been  elected  in  full  accordance  with  the  pro- 
visions of  the  organic  law  of  1853,  and  who  had  been  recog- 
nized, inside  and  outside  the  country,  as  a  constitutional 
Governor, 

But  Senor  Chamorro  belonged  to  the  Conservative  party, 


'This  statement  is  based  upon  the  facts  reported  by  the  official  press  of 
Nicaragua,  the  "  Anuario  de  Ambos  Mundos,"  and  the  History  of  the  Nic- 
araguan war  by  Walker. 
5 


66 

and  the  hatred  between  this  party  and  the  one  called  Demo- 
cratic had  to  lead  the  country  into  grave  disasters. 

It  was  on  that  memorable  date  that  Gen.  Don  Maximo 
Jerez,  and  many  others  among  his  followers  exiled  from 
Nicaragua  by  Chamorro,  succeeded  in  surprising  the  garrison 
of  the  port  of  Realejo,  and  in  carrying  their  victorious  arms 
as  far  as  Leon. 

There  they  organized  a  provisional  government,  at  the  head 
of  which  they  placed  Don  Francisco  Castellon,  formerly  a 
minister  of  Chamorro  and  his  rival  in  the  last  election  ;  •  and 
this  Government  was  accepted  and  recognized  by  a  considera- 
ble part  of  the  country. 

In  the  meantime  Chamorro  concentrated  his  forces  in 
Granada,  the  stronghold  of  his  principal  followers,  and  pre- 
pared himself  for  the  struggle. 

The  State  saw  itself  divided,  therefore,  into  two  great  hos- 
tile bands,  one  presided  over  by  the  legitimate  Government, 
Conservative  or  Granadine,  which  supported  the  Constitution 
of  1853,  then  in  force,  and  the  other  by  the  Kevolutionary 
Government,  Democratic  or  Leonese,  which  supported,  as  it 
alleged,  the  principles  of  the  former  Constitution  of  1838, 
then  abolished. 

The  struggle  was  stubborn  and  cruel ;  and,  when  the  Leonese 
party  saw  itself  doomed  to  perish,  called  to  its  assistance  the 
adventurer,  William  Walker,  who  arrived  in  Nicaragua  in 
June,  1855. 

The  cholera,  which,  at  that  time,  ravaged  the  country, 
caused  both  belligerents  to  pay  it  their  tribute  by  carrying 
off  their  leaders ;  but  the  place  of  Chamorro  was  filled  by 
Dr.  Jos^  Maria  Estrada,  and  that  of  Castellon  by  Don 
Nazario  Escoto,  and  the  struggle  continued  with  still  more 
fury. 

Foreign  assistance  inclined  things  in  favor  of  the  Leonese 
party,  and  on  the  23d  of  October,  1855,  General  Corral,  in 
the  service  of  the  Conservative  Army,  and  with  powers  which 
he  said  he  had  received  from  Estrada,  on  the  one  side,  and 


67 

Walker,  in  the  name  of  the  Democratic  Government,  on  the 
other,  signed  a  treaty  by  which  a  new  Government  was  or- 
ganized, and  the  civil  war  was  terminated. 

This  treaty  was  afterwards  ratified  by  the  Democratic  Gov- 
ernment. 

The  new  mixed  Government  was  constituted  as  follows : 

President,  Don  Patricio  Kivas,  of  moderate  opinions. 

Secretary  of  War,  General  Corral,  Conservative. 

Secretary  of  Foreign  Kelations,  General  Jerez,  Democrat. 

The  rival  Governments  of  Estrada  and  Escoto  disappeared 
from  the  political  arena. 

The  new  Government  was  recognized  at  home  and  abroad ; 
bnt  behind  it  the  sinister  figure  of  Gen.  Walker,  Chief  Com- 
mander of  the  Army,  carefully  watching  for  the  moment  of 
taking  possession  of  the  power,  prominently  showed  itself. 

The  outrageous  assassination  of  the  Secretary  of  War,  exe- 
cuted by  Walker  under  color  of  military  justice,  with  the 
knowledge  of  and  without  opposition  from  the  Kivas  Cabinet, 
which  was  powerless  to  prevent  it,  aftbrded  that  occasion. 

Kivas  and  Jerez,  tired  of  being  mere  instruments  in  the 
hands  of  the  ambitious  foreigner,  pronounced  themselves 
against  him. 

Then  Walker  proclaimed  Don  Fermin  Ferrer  Provisional 
President  of  Nicaragua ;  and  subsequently,  under  a  sham 
election  said  to  have  been  made  under  the  constitution  of  1838, 
proclaimed  himself  President;  and  there  were  distinguished 
Nicaraguans,  such  as  Vigil,  Pineda,  Valle,  and  hundreds  of 
others,  who  accepted,  recognized,  and  supported  those  admin- 
istrations. Such  was  the  blindness  of  the  political  passions 
and  the  confusion  of  things  in  Nicaragua. 

In  view  of  the  new  turn  which  the  events  had  taken,  Es- 
trada, then  in  Honduras,  repealed  and  repudiated  the  treaty 
of  the  23d  of  October,  which  had  transferred  the  power  to 
Don  Patricio  Kivas  ;  but  Don  Patricio  Kivas  himself  con- 
tinued to  maintain,  on  his  part,  that  the  only  legitimate  power 
of  Nicaragua  was  represented  by  him. 


68 

Walker  counted,  however,  with  great  elements  for  resist- 
ance, both  inside  and  outside  the  country ;  and  it  was  neces- 
sary for  Nicaragua  that  the  forces  of  Costa  Eica,  Salvador, 
Honduras,  and  Guatemala  should  come  to  her  assistance  to 
expel  Walker,  as  they  did  on  the  1st  of  May,  1857,  from  the 
Central  American  soil. 

The  Government  which  then  remained  standing  w^as  the 
government  of  Don  Patricio  Eivas,  born  out  of  the  treaty  of 
the  23d  of  October ;  but  it  did  not  satisfy  the  aspirations  of 
either  the  Leonese  or  the  Granadine  party,  which  prepared 
themselves  to  enter  again  into  a  new  struggle,  until  securing 
absolute  control  for  the  conqueror. 

The  two  commanders  of  the  rival  forces.  Generals  Don 
Maximo  Jerez  and  Don  Tomas  Martinez,  succeeded  in  reach- 
ing an  agreement  by  which  they  divided  the  power  among 
themselves,  and  formed  a  duumvirate,  which  put  an  end  to  the 
administration  of  Eivas,  and  initiated  the  reorganization  of 
the  country. 

Blood  had  been  shed  in  torrents  for  the  Constitutions  of 
1838  and  1853  ;  and  Jerez  and  Martinez  thought  that  it  was 
advisable  to  promulgate  a  new  organic  law,  and  convoke  for 
that  purpose  a  Constituent  Assembly.  At  the  same  time  they 
ordered  also  a  general  election  for  the  office  of  President  of 
the  Eepublic. 

Popular  vote  decided  in  favor  of  Martinez ;  and  the  Assem- 
bly which  met  in  November  declared  all  that  had  been  done 
in  Nicaragua  during  the  revolutionary  period  to  be  null  and 
void,  and  ratified,  the  Presidential  election. 

It  was  in  this  way  that  the  Government  of  Castellon  and  his 
rival  Estrada,  the  Government  of  Don  Patricio  Eivas,  both 
before  and  after  the  expulsion  of  Walker,  the  administrations 
of  Ferrer  and  Walker,  and  even  the  duumvirate  of  Martinez 
and  Jerez,  were  ignored  and  repudiated  as  if  they  had  never 
existed ;  and  all  their  acts,  laws,  decrees,  decisions,  orders, 
grants  of  land,  letters  of  citizenship,  treaties,  promissory 
notes,  contracts,  and  obligations  of  all  kinds,  became  null 


69 

and  void,  and  adjudged  to  be  without  value  or  effect  of  any 
kind.  Everything  was  embraced  in  the  repudiation  decreed 
by  the  Assembly. 

The  constituent  body  ratified,  nevertheless,  such  decrees 
of  the  duumvirate  as  had  been  issued  for  the  reorganization  of 
the  country. 

This  Assembly,  where  all  the  parties  were  represented,  con- 
stituted itself,  with  the  general  consent  of  the  country,  as  the 
supreme  ruler  of  the  destinies  of  Nicaragua.  The  Martinez 
Government  lent  to  it  unconditional  support,  and  everything 
pointed  to  one  object,  which  was  the  consolidation  of  peace 
and  the  re-establishment  of  order. 

The  principle  of  legality  represented  by  Estrada  and  by 
the  Constitution  of  1853  was  left  buried  under  the  rubbish 
heaped  up  by  anarchy  ;  and  the  triumphant  legality  was  the 
one  represented  by  the  Constituent  Assembly,  which  was  the 
last  and  crowning  step  of  the  revolution. 


Chapter    III. 

THE  CONSIDERATION  OF  THE  EXCEPTIONAL  REGIME  EXISTING  IN  NICARAGUA 
IN    1858    CONTINUED. 

The  Assembly  undertook  the  great  work  of  the  political 
organization  of  Nicaragua  in  November,  1857,  and  the  new 
Constitution  did  not  appear  until  the  19th  of  August,  1858. 

During  the  time  which  intervened  between  the  former  and 
the  latter  date  the  Assembly  exercised  unlimited  powers, 
both  constituent  and  legislative,  without  restriction  of  any 
kind. 

That  body  was  not  a  mere  constituent  congress  in  the  ordi- 
nary sense  of  the  word.  It  was  much  more  than  that ;  it  was 
a  great  national  convention.  Now  it  acted  as  a  Legislature, 
then  as  a  Constituent  Congress ;  now  as  forming  but  one 
chamber,  then  as  a  Congress  consisting  of  two  co-ordinate 
Houses  ;  now  enacting  organic  laws,  and  then  promulgating 
municipal  statutes ;  creating  tribunals,  amending  codes,  ap- 
proving treaties,  and  promulgating  the  Constitution.  Its  om- 
nipotence was  superior  even  to  the  principle  that  the  laws 
have  no  retroactive  effect,  which  is  found  at  the  very  root  of 
the  legislation  of  all  countries. 

The  Assembly  which  acted  in  that  way  certainly  exercised 
an  unlimited  power,  the  greatest  which  can  ever  be  exercised 
among  men  constituted  in  society,  and  did  not  find  itself 
under  the  sway  of  any  written  law  regulating  its  action  or 
embarrassing  its  movements. 

Instances  of  such  assemblies  are  not  frequent  in  the  lives  of 
the  nations,  but  they  always  occur  after  great  social  revolu- 
tions. I  need  not  cite  examples  which  are  perfectly  well 
known. 

These  extraordinary  constituent  bodies  are  vested,  owing 
to  their  own  nature,  with  the  plenitude  of  power  which  con- 


71 

stitutes  sovereignty.  All  that  the  Sovereign  can  do  they  also 
can  accomplish. 

The  abolished  Constitution  of  1838,  which  was  the  flag 
harbored  by  the  revolution  of  May,  1854,  was  the  starting- 
point  of  the  labors  of  the  Constituent  Assembly,  as  provided 
by  the  decree  of  Convocation  ;  but  the  provisions  of  that 
organic  law,  thousands  of  times  trampled  upon  by  the  bellig- 
erent parties,  affected  nothing,  nor  could  they  affect  the  ac- 
tion of  the  Assembly. 

That  Constitution  forbade  the  Chief  Executive  Magistrate 
to  command  the  army ;  but  the  Assembly  decreed  the  con- 
trary. 

That  Constitution  forbade  the  members  of  the  Legislative 
body  to  be,  simultaneously,  members  of  the  Supreme  Court 
of  Justice,  or  officers  and  clerks  in  the  Executive  Depart- 
ment ;  but  the  Assembly  enacted  otherwise. 

That  Constitution  provided  that  the  Presidential  term  of 
office  should  be  two  years  ;  but  the  Assembly  decided  that 
it  should  be  four. 

That  Constitution  established  the  principle  that  no  retro- 
active effect  should  be  given  to  laws ;  but  the  Assembly  en- 
acted laws  to  which  it  gave  retroactive  effect  ;  something 
monstrous  in  theory,  but  claimed  to  be  necessary,  absolutely 
indispensable  in  practice,  under  those  circumstances,  as 
ground  and  foundation  for  a  new  legal  order  subsequent  to 
revolution  and  anarchy. 

Shortly  after  the  meeting  of  the  Constituent  Assembly 
difficulties  arose  between  Costa  Eica  and  Nicaragua,  as  al- 
ways happened,  on  account  of  the  unfortunate  question  of 
limits.  Nicaragua  thought  that  Costa  Eica  had  invaded  her 
territory,  and  prepared  herself  for  defence,  and  issued  a  de- 
cree, under  date  of  the  25th  of  November,  1857,  declaring 
war  against  Costa  Eica. 

In  addition  to  that  decree,  and  foreseeing  that  some  ar- 
rangement could  be  made  with  Costa  Eica,  the  Assembly 
enacted  another  decree,  dated  on  the  10th  of  December  fol- 


72 

lowing,  by  which  it  vested  in  the  Executive,  in  full,  all  the 
powers  w^hich,  in  regard  to  foreign  relations,  had  already 
been  agreed  to  be  given  it  by  the  Constitution  which  was 
then  under  discussion,  and  which  some  months  afterw^ards, 
in  August,  was  in  fact  promulgated. 

Let  us  see  now  which  were  those  faculties.  I  shall  copy 
from  the  Journal  itself  of  the  Assembly  of  the  25th  of  No- 
vember, 1857.     I  find  there  the  following  passage  : 

"  It  was  resolved  that  Section  8,  relative  to  foreign  rela- 
tions and  negotiations  of  treaties,  should  be  divided  into  two 
parts,  and,  upon  consideration  of  each  one,  they  were  finally 
approved,  as  follows  : 

"  1st.  To  conduct  the  Foreign  Relations ;  to  appoint  and 
accredit  diplomatic  ministers  of  all  grades,  agents  and  consuls 
of  the  Republic,  near  the  Foreign  Governments  and  courts ; 
to  receive  or  admit  those  sent  here,  when  legally  authorized. 

"  2d.  To  negotiate  treaties  and  all  other  contracts  whatso- 
ever interesting  the  Republic,  whether  with  companies  or 
private  persons,  both  native  or  foreign  ;  to  adjust  treaties  of 
peace ;  to  celebrate  concordats  with  the  Apostolic  See — all 
these  acts  being  subject  to  ratification  by  the  Legislative 
Power,  and  to  exercise  the  patronage  according  to  law." 

And  as  in  this  section,  section  17th  of  the  project  has  been 
embodied,  the  Assembly  went  on  to  discuss  the  other  two.^ 

In  use  of  these  faculties,  agreed  upon  by  the  Assembly 
since  the  26th  of  November,  and  sanctioned  and  put  into 
operation  on  the  1st  of  December,  owing  to  the  urgency  of 
the  occasion,  the  Government  of  Gen.  Martinez  entered  into 
negotiations  with  Costa  Rica  to  rid  the  country  of  a  war 
which  was  believed  to  be  imminent. 

Supposing  that  the  Constitution  of  1838  would  have  had 
any  value  at  all  up  to  that  time,  as  rule  of  action  for  the 
supreme  powers,  the  decree  of  December  1st,  as  far  as  for- 


^  These  faculties  are  the  same  described  in  Sees.  14,  15,  and  16  of  the 
Nicaraguan  Constitution  of  Aug.  19,  1858. 


73 

eign  relations    and   international   treaties  were    concerned, 
buried  it  finally  in  the  grave  of  history. 

But  circumstances  were  most  grave,  and  the  Constituent 
Assembly  did  not  content  itself  with  the  facilities  it  had  given 
the  Executive  for  Rie  termination  of  the  differences  between 
Costa  Rica  and  Nicaragua.  And,  for  the  sake  of  obtaining 
an  immediate  arrangement,  it  issued  on  the  5th  of  February, 
1858,  the  decree  which  reads  as  follows : 

"  The  Constituent  Assembly  of  the  Republic  of  Nicaragua, 
in  use  of  the  legislative  faculties  with  which  it  is  invested, 
decrees : 

"  Article  1.  For  the  purpose  that  the  Executive  may  com- 
ply with  the  Decree  of  January  18th  instant,  ^  the  said  Ex- 
ecutive is  hereby  amply  autJiorized  to  act  in  the  settlement  of 
the  difficulties  with  the  Itepiiblic  of  Costa  Rica  in  such  man- 
ner as  it  may  deem  hest  for  the  interests  of  both  countries^  and 
for  the  independence  of  Central  America^  without  the  neces- 
sity OF  RATIFICATION  BY  THE  LEGISLATIVE  POWER. 

"  Article  2.  8uch  treaties  of  limits  as  it  may  adjust  shall 
BE  final,  if  adjusted  in  accordance  with  the  bases  which  sepa- 
rately will  be  given  to  it ;  but^  if  not,  they  shall  be  subject  to 
the  ratification  of  the  Assembly. 
"  To  the  Executive  power. 

"  Given  at  the  Hall  of  Sessions  in  Managua,  on  the  5th  of 
February,  1858. 

"  TiMOTEO  Lacayo,  President. 
"  IsiDORO  Lopez,  Secretary. 
"  Pablo  Chamorro,  Secretary.'" 

This  decree  was  ordered  to  be  executed  by  the  President 


^  By  this  decree  the  Constituent  Assembly  had  ordered  new  Commissioners 
to  be  appointed,  who,  under  new  instructions,  should  enter  into  the  nego- 
tiation of  treaties  of  peace,  limits,  friendship,  and  alliance  between  Nic- 
aragua and  Costa  Rica,  which  would  harmonize  their  respective  interests, 
and  affirm  the  independence  of  the  two  countries,  said  treaties  being  sub- 
ject to  the  ratification  of  the  Assembly. 


74 

on  the  same  5tli  day  of  February,  and  was  duly  published 
and  promulgated. 

By  virtue  of  its  provisions  the  Executive  power  became 
vested  with  the  faculty  of  making  a  final  treaty  with  Costa 
Rica,  without  needing  legislative  ratification,  provided,  how- 
ever, that  as  far  as  limits  were  concerned  it  would  con- 
form itself  to  the  bases  or  instructions  separately  communi- 
cated to  it,  the  ratification  being  indispensable  only  in  case 
that  the  stipulation  made  in  regard  to  limits  should  deviate 
from  those  instructions. 

The  treaty  of  April  15,  1858,  was  made  under  the  sway  of 
this  decree,  and  of  the  former  one  of  December  1,  1857  ;  not 
at  all  under  the  sway  of  the  Constitution  of  1838. 

The  separate  instructions  or  bases  framed  by  the  Assem- 
bly were  respected  and  complied  with,  and  no  legislative  ap- 
proval was,  therefore,  necessary.  In  proof  thereof  the  fact 
can  be  mentioned  that  the  treaty  was  published  as  a  law  of 
Nicaragua,  and  no  objection  w^as  raised  in  the  Assembly 
against  its  language.  Had  the  Executive  deviated  from  the 
instructions  or  bases  given  it  by  the  Assembly,  such  an  ac- 
quiescence would  never  have  been  witnessed. 

The  subsequent  administrations  of  Nicaragua  have  made 
stupendous  efforts  of  imagination  to  find  out  flaws  in  the 
treaty  of  limits ;  but  it  has  never  occurred  to  them  that 
Gen.  Martinez  went  beyond  the  instructions  given  him  by 
the  Assembly  of  1858.  This  is  a  good  indication  that  the 
treaty  was  made  in  compliance  with  them. 

The  treaty  did  not  require,  as  I  have  said,  legislative  rati- 
fication ;  but  for  the  greater  approval  thereof  the  said  ratifi- 
cation was  granted  to  it  by  the  decree  of  May  28,  1858.^ 

The  treaty  of  limits  became,  then,  for  Costa  Rica,  for  Nic- 
aragua, for  the  friendly  nations,  and  for  the  whole  world,  an 
international  compact,  inviolable  and  sacred. 

The  Constituent  Assembly  went  on  with  its  work,  and  in 
the  new  organic  law.  Article  I,  it  provided  as  follows  : 


^  This  decree  has  been  embodied  in  First  Part,  Chapter  V,  p.  55. 


75 

"  The  laws  on  special  limits  foem  a  pakt  of  the  Consti- 
tution." 

The  treaty  of  April  15,  1858,  which  was,  as  it  is  now,  a 
law  of  Nicaragua,  and  was,  as  it  is  now,  a  law  on  special 
limits,  became,  therefore,  a  part  of  the  Constitution,  and 
acquired,  in  a  still  more  firm  and  solemn  manner,  the  char- 
acter of  Nicaraguan  organic  law. 

It  is  therefore  shown  by  proof  of  irresistible  character : 

1st.  That  the  treaty  of  limits  was  not  adjusted  under  the 
sway  of  the  Constitution  of  1838. 

2d.  That  it  was  initiated,  concluded,  ratified,  exchanged, 
promulgated,  and  carried  into  execution  under  a  transitory 
regime  where  the  Government  was  vested  with  unlimited 
and  extraordinary  constituent  power. 

3d.  And  that  it  was  made  a  part  of  the  Nicaraguan  Con- 
stitution of  1858. 

What  now  remains  to  be  known  is  whether  the  action  of  a 
special  and  extraordinary  regime,  if  a  government  of  political 
reorganization,  such  as  the  one  existing  in  Nicaragua  in  1858, 
can  bind  the  country. 

The  answer  is  very  simple.  It  is  given  by  the  well  known 
authority  of  Don  Carlos  Calvo. 

"  A  dc  facto  government,  recognized  by  the  other  States 
and  in  intimate  communion  with  the  mass  of  the  nation, 
possesses  in  regard  to  the  national  territory  the  same  powers, 
the  same  faculties,  as  the  legitimate  government  which  it  re- 
placed. All  that  is  done  by  it  within  the  limits  foreseen  and 
determined  by  the  domestic  public  law  of  the  State,  whether 
for  acquiring  or  for  alienating  territory,  is  absolutely  valid 
and  irrevocable.  This  is  a  principle  of  high  practical  im- 
portance from  an  international  point  of  view."^ 

Of  the  opinion  of  Calvo  are  also  Vattel,  Phillimore,  Heffter, 
Kent,  Ortolan,  Bello,  Riquelme,  Pradier  Foder^,  Halleck, 
Garden,  Desjardins,  and  Kliiber,  cited  by  him. 


^  Droit  international  th§orique  et  pratique,  vol.  1,  §  711. 


76 

Which  was  the  domestic  public  law  of  Nicaragua  at  the 
time  of  the  conclusion  of  the  treaty  ?  Was  it,  perhaps,  the 
Constitution  of  1838  ?  No ;  by  no  means.  We  have  seen 
already,  that,  as  far  as  foreign  relations  in  general,  and  es- 
pecially as  far  as  negotiations  with  Costa  Rica  about  limits 
were  concerned,  the  said  constitution  had  been  abrogated  by 
specific  decrees  enacted,  ad  hoc,  by  that  Constituent  As- 
sembly. 

The  domestic  public  law  of  Nicaragua,  at  the  time  of  the 
conclusion  of  the  treaty  of  limits,  consisted  in  the  decrees 
of  December  1,  1851,  and  February  5,  1858. 

The  treaty  was  adjusted  in  conformity  with  those  decrees. 

It  was,  besides,  ratified  by  the  Constituent  Assembly. 

It  was  subsequently  made  a  part  of  the  Constitution  of 
1858. 

Its  validity  is  therefore  indisputable,  and  its  firmness  un- 
controvertible. 


Chapter  IV. 

THE  TREATY  OF  LIMITS  DOES  NOT  IMPLY  ANY  REFORM  OR  AMENDMENT  OF 
THE  NICARAGUAN  CONSTITUTION  OF  1838. 

Even  if  taken  for  granted  that,  at  the  time  of  the  approval 
of  the  treaty  of  limits,  Nicaragua  found  herself  under  a  reg- 
ular constitutional  regime,  where  the  charter  of  1838  ruled 
supremely,  and  not  under  the  extraordinary  circumstances 
above  explained,  still  the  efficiency  and  validity  of  the  com- 
pact would  not  be  less. 

The  Constitution  of  1838  did  not  define  the  frontier  of  the 
Nicaraguan  territory  on  the  side  of  Costa  Kica.  And  the 
reason  of  this  omission  was  that  Nicaragua  had  then  a 
question  pending  with  her  neighbor  about  limits,  and  the 
Constituent  Legislature  did  not  want  to  prejudge  it  in  any 
way  whatever.  Therefore  it  chose  to  preserve  the  status  quo, 
and  declared,  in  general  terms,  that  the  national  territory 
reached  on  the  southeast  as  far  as  the  frontier  of  Costa  Eica  ; 
and  it  added  that  the  boundaries  with  the  bordering  States 
should  he  marked  hy  a  law  which  would  make  a  part  of  the 
Constitution . 

Here  is  the  text  of  this  provision  : 

"  Article  II.  The  territory  of  the  State  is  the  same  as  was 
formerly  given  to  the  Province  of  Nicaragua  ;  its  limits  be- 
ing, on  the  east  and  northeast,  the  sea  of  the  Antilles  ;  on 
the  north  and  northwest,  the  State  of  Honduras  ;  on  the 
west  and  south,  the  Pacific  Ocean  ;  and  on  the  southeast  the 
State  of  Costa  Kica.  The  dividing  lines  with  the  bordee- 
iNG  States  shall  be  marked  by  a  law  which  will  make  a 

PART    OF   THE    CONSTITUTION." 

The  Constitution,  therefore,  was  left  incomplete  ;  but  it 
provided  for  the  means  of  completing  it,  which  should  be  by 
a  law. 


78 

To  say  that  the  Charter  of  1838  carried  the  frontiers  of 
the  State  as  far  as  the  Jimenez  river  on  the  Atlantic  and  the 
Salto  river  on  the  Pacific,  as  has  been  held  during  the  last 
years,  is  to  assert  what  the  Charter  itself  does  not  say.  It 
is  to  contradict  openly  the  provision  which  it  contains,  and 
which  postpones,  until  a  law  for  that  special  purpose  should 
be  enacted,  the  determination  of  the  bordering  line. 

It  will  be  remembered  that  when,  in  1838,  Nicaragua  was 
engaged  in  the  reform  of  the  Constitution  of  1826,  Don 
Francisco  Maria  Oreamuno,  Envoy  of  Costa  Rica,  requested 
Nicaragua,  finally,  to  recognize  the  annexation  of  Nicoya  to 
Costa  Rica,  and  that,  as  no  treaty  upon  the  subject  could 
then  be  made,  and  there  was  some  hope  of  an  amicable  set- 
tlement more  or  less  speedy,  but  sincerely  and  ardently  de- 
sired by  both  parties,  it  was  decided,  in  order  that  the  new 
Constitution  should  not  offer  any  obstacle  to  the  said  settle- 
ment, that  the  language  thereof  would  be  that  which  has  al- 
ready been  quoted. 

In  view  of  Article  2  of  the  Constitution  of  1838,  as  framed 
under  the  circumstances  aforesaid,  it  can  be  asserted  without 
any  hesitation  that  the  said  Constitution  of  1838  did  not 
mark  out  the  boundary  between  Nicaragua  and  Costa  Rica ; 
nor  could  it  do  so  reasonably,  since  there  was  an  interna- 
tional controversy  pending  upon  that  very  point,  loyally  con- 
ducted on  diplomatic  grounds,  the  solution  of  which,  amica- 
bly and  peacefully,  was  desired  by  both  parties ;  and  it  was 
not  proper  that,  by  a  declaration  ex  abrupto,  made  by  one  of 
them,  by  its  own  authority,  the  cause  would  be  decided  in 
its  favor,  and  the  question  would  be  placed  on  the  ground  of 
accomplished  facts. 

A  public  treaty,  clothed  with  all  the  force  of  a  law,  was 
destined  to  supplement  and  complete  the  Constitution  in 
which  it  had  to  be  embodied  so  as  to  become  a  part  of  the 
organic  law  of  Nicaragua,  and  as  long  as  the  treaty  was  not 
concluded  the  Constitution  ought  to  remain  incomplete. 

Such  is  the  clear  right  and  natural  construction,  as  well  as 


79 

the  only  possible  one,  to  be  placed  upon  the  constitutional 
text,  and  any  other  which  may  be  attempted  to  be  placed 
upon  it  will  be  violent  and  in  open  contradiction  to  its  letter 
and  spirit. 

So  that  the  treaty  by  which  the  unfortunate  question  of 
limits  between  Costa  Rica  and  Nicaragua  was  set  at  rest,  far 
from  involving  or  impl3ring  a  constitutional  reform  or  amend- 
ment, was,  as  expressed  by  the  text  of  the  charter  itself, 
the  natural  complement  of  it.  It  became  a  part  of  it  since 
the  very  moment  in  which  the  character  of  a  national  statute 
was  given  to  it. 

It  was  not  necessary,  under  these  circumstances,  for  the 
treaty  of  limits  to  be  approved  either  by  a  Constituent  As- 
sembly, convoked  ad  hoc,  or  by  two  subsequent  Legislatures. 

There  was  no  amendment  to  make,  and  there  was  only  one 
void  to  fill.  This  was  to  be  done  as  the  Constitution  provided  ; 
that  is,  by  means  of  a  secondary  law  or  statute,  which  was 
the  treaty  of  limits. 

Even  supposing  that  this  treaty  was  concluded  under  the 
sway  of  the  Constitution  of  1838,  Article  194  of  the  same, 
which  refers  to  constitutional  amendments  or  reforms,  an 
article  on  which  the  Government  of  Nicaragua  grounds  its 
argument,  has  nothing  at  all  to  do  with  the  question,  be- 
cause Article  2,  which  created  the  void,  provided  at  the 
same  time  for  the  manner  of  filling  it.  Article  2,  there- 
fore, and  not  Article  194,  is  the  one  at  which  it  is  necessary 
to  look  for  the  decision  of  the  point. 

This  construction,  which,  as  has  been  proved,  is  the  only 
admissible  one,  was  also  the  one  which  the  supreme  authori- 
ties of  Nicaragua  placed  upon  the  domestic  public  law  of  that 
country  when  the  treaty  was  made.  Neither  the  Commission - 
■  ers  of  the  Nicaraguan  Government,  nor  the  Executive  power 
of  that  Republic,  nor  her  Constituent  Assembly,  nor  her  pub- 
lic press,  nor  any  person  whatever,  said  then,  or  even  thought, 
that  the  treaty  of  limits  would  not  be  binding  upon  Nicaragua 
unless  subject  to  special  proceedings  never  before  resorted  to 
for  the  perfection  of  treaties  among  nations. 


80 

It  cannot  be  thought,  or  admitted,  that  a  whole  generation 
of  public  men  would  be  ignorant  to  such  a  degree  of  the  con- 
stitutional law  of  their  own  country. 

It  cannot  be  thought,  either,  that  the  organic  laws  of  Nic- 
aragua were  then  constructed  in  bad  faith,  so  as  to  leave  the 
door  open  to  future  controversy  and  afford  opportunities  to 
violate  pledged  faith. 

The  only  thing  which  can  be  said  and  thought  is  that  the 
doubts  which  occurred  to  the  mind  of  Secretary  Ayon,  after 
fourteen  years  of  mutual  and  faithful  execution  of  the  treaty, 
on  the  part  of  both  countries,  has  no  rational  foundation. 

The  Assembly  which  approved  the  treaty  was  not  an  ordi- 
nary Congress,  subject  to  the  provisions  of  a  charter,  but  an 
extraordinary  Constituent  Assembly,  which  ruled  with  sov- 
ereign unlimited  power.  But  even  supposing  that  it  was  the 
former,  and  that  the  Constitution  of  1838  was  the  rule  which 
should  have  governed  its  acts,  it  is  clear  that  it  had  perfect 
authority  and  power  to  finally  approve  that  treaty.  I  have 
maintained  that  the  arrangement  of  limits  did  not  imply  a 
constitutional  amendment  or  reform,  and  I  have  proved  it 
superabundantl3^  But  in  order  that  even  the  last  vestige  of 
doubt  should  be  vanished  in  this  respect,  I  beg  to  be  allowed 
to  refer  to  Article  42,  chapter  13,  of  the  Nicaraguan  Consti- 
tution of  1858,  which  is  the  one  now  in  force.  It  reads,  as  far 
as  this  special  matter  is  concerned,  in  the  following  words : 

"  Faculties  of  Congress  in  Separate  Chambers T 

"It  belongs  to  Congress,  *  *  •5«-  24.  To  decide  by  a 
two-third  vote  on  the  following  subjects :     -     -J^-     ^    3(J.  All 

LAWS  FIXING  THE  BOUND  ABIES  BETWEEN  THIS  AND  THE  OTHER  Ee- 

puBLics.     *     ^     *     5th.  The  ratification  of  all  treaties, 
agreements  and  contracts  of  canalization^  highways  and  loans 

ENTERED  INTO  BY  THE  EXECUTIVE." 

Before  1858  the  marking  out  of  the  boundaries  of  the 
country  was,  according  to  a  provision  ad  hoc  of  the  Consti- 


81 

tiition,  a  proper  subject  of  a  statutory  law ;  after  the  Consti- 
tution of  1858  the  exception  became  the  general  rule. 

During  half  a  century,  therefore,  both  before  and  after  the 
treaty  of  limits  of  1858,  it  has  been  held  in  Nicaragua,  as  a 
constitutional  principle,  that  the  questions  of  limits  are  proper 
matter  for  secondary  laws  or  statutes,  to  be  enacted  by  or- 
dinary legislatures,  without  the  special  requisites  or  proceed- 
ings which  are  necessary  for  the  enactment  of  organic  laws. 

All  the  efforts  of  Dialectics  which  Senores  Ayon  and  Ki- 
vas  have  made  to  convey  the  idea  that  the  treaty  in  question 
involved,  or  implied,  an  amendment  or  a  reform  of  the  or- 
ganic laws  of  Nicaragua,  have  fallen  to  the  ground  before 
the  literal,  plain,  express,  and  unmistakable  text  of  the  Nic- 
araguan  Constitutions  themselves. 
6 


Chapter  V. 

THE  TREATY  OF  LIMITS  WAS  RATIFIED,  NOT  ONCE  OR  TWICE,  BUT  ON  SEVERAL 
REPEATED  OCCASIONS,  BY  THE  NICARAGUAN  LEGISLATURES. 

It  has  been  shown  in  the  preceding  chapters  that  the  treaty 
of  limits  was  not  concluded  and  approved  under  the  sway  of 
the  Constitution  of  1838 ;  and,  furthermore,  that,  even  in  case 
that  such  a  thing  should  have  happened,  it  would  have  been 
sufficient  for  the  perfect  validity  of  the  said  treaty  that  the 
ratification  by  one  Legislature  had  been  obtained  because 
the  treaty  did  not  involve  any  amendment  or  reform  of  the 
organic  law. 

But  in  order  to  follow  up  and  refute  in  every  respect  the 
arguments  of  the  opponent,  I  will  now  take  it  for  granted 
that  the  approval  of  the  treaty  did  indeed  involve  a  consti- 
tutional reform,  and  that,  therefore,  two  legislative  ratifica- 
tions were  required. 

Under  this  aspect  of  the  case  I  shall  set  forth  and  prove 
that  not  only  those  two  ratifications,  but  many  others  subse- 
quent, have  been  imparted  to  the  treaty. 

In  1858  Mr.  Felix  Belly  asked  the  Government  of  Nic- 
aragua for  a  grant  for  the  opening  of  an  interoceanic  canal. 
In  1859  the  petition  was  referred  to  the  Chambers  ;  and 
the  Chambers,  before  taking  any  action,  having  in  view  the 
proviaioiis  of  the  treaty  of  limits,  decided  that  the  Executive 
should  first  comply,  i?i  full,  with  Article  VIII  of  the  said 
treaty,^  and  the  Executive  did  as  directed. 

Lately,  in  the  same  year,  1859,  the  same  Chambers  which 
had  respected  and  obeyed  Article  VIII  of  the  treaty  of  Hmits, 
decreed  by  one  of  the  articles  of  the  law  enacted  by  them  in 
regard  to  the  BeUy  canal,  as  foUows  : 


Documents,  Nos.  19  and  20. 


83 

"  Article  4tli.  In  case  that  the  line  to  be  drawn,  beginning 
on  the  Sapoa  river  on  the  Lake  of  Nicaragua,  and  ending  in  the 
Salinas  Bay  on  the  Pacific  Ocean,  should  be  considered  prac- 
ticable by  the  engineers,  the  company  shall  be  bound  to 
select  that  line  with  preference  to  all  others,  for  the  route 
from  the  Lake  of  Nicaragua  to  the  Pacific  Ocean,  and  the 
route  so  opened  shall  be,  by  the  same  fact,  and  all  along  its 
extent,  the  definite  limit  between  the  two  States  of  Nicaragua 
and  Costa  Rica.  If  not  considered  p7\icticahle  this  limit  shall 
remain  as  it  is  now,  sid)ject  to  subsequent  regulations.^ 

As  it  is  seen,  the  canal  had  to  follow  on  the  Pacific  side,  if 
possible,  the  same  course  as  the  line  between  the  Sapoa  river 
and  the  Salinas  Bay,  and  become,  whether  built  on  one  side 
or  the  other  of  the  astronomic  line  marking  the  boundary, 
the  definitive  and  permanent  limit,  forever  dividing  the  two 
Republics:  If  the  canal  was  built  elsewhere,  because  the 
above  said  route  proved  to  be  impracticable,  no  change  should 
be  made  on  the  frontier,  which  would  remain  as  it  was  ;  that 
is,  as  marked  by  the  treaty  of  1858,  subject  to  subsequent 
arrangements. 

The  Legislature  and  the  Executive  of  Costa  Rica  adhered 
to  the  Belly  contract ;  and  this  was  promulgated  as  law  both 
in  Nicaragua  and  Costa  Rica.^ 

Can  any  one  desire  a  more  explicit  recognition  that  the 
treaty  was  a  law  of  Nicaragua  ?  Can  any  one  desire  a  more 
authorized  and  authentic  interpretation  than  the  one  given 
by  the  same  Nicaraguan  Legislature  of  1859  V 

The  treaty  did  not  require,  indeed,  any  ratification ;  but 
it  was  certainly  given  to  it  by  the  Nicaraguan  Chambers  of 
1859. 

In  1861  the  Nicaraguan  Government,  with  the  approval  of 
the  Legislature,  entered  into  a  contract  with  an  American 


^Convencion  Internacional  entre  los  Gobiernos  de  Nicaragua  y  Costa 
Rica  y  Don  Felix  Belly  para  la  canalizacion  del  Istmo.  Managua  Imprenta 
del  Progreso,  frente  al  Palacio  Nacional  1859. 

"^  See  Pamphlet  named  in  the  preceding  note. 


84 

company  for  interoceanic  transit.  When  the  Government 
of  Costa  Eica  was  consulted  about  it,  in  obedience  to  Arti- 
cle VIII  of  the  treaty  of  limits,  the  latter  Government  sug- 
gested, by  despatch  of  the  2d  of  March,  that  a  special  clause 
should  be  inserted  in  the  grant  saving  the  rights  acquired  by 
Costa  Kica  under  Article  VI  of  the  Canas-Jerez  treaty  of 
April  15,  1858,  which  reads  as  follows : 

"  The  Republic  of  Nicaragua  shall  have,  exclusively,  the 
dominion  and  sovereignty  on  the  waters  of  the  San  Juan 
river  from  its  origin  in  the  Lake  to  its  mouth  in  the  Atlan- 
tic ;  but  the  Republic  of  Costa  Rica  shall  have,  in  the  same 
waters,  the  perpetual  rights  of  navigation  between  the  said 
mouth  of  the  river  to  a  point  three  English  miles  distant  this 
side  of  Castillo  Viejo,  for  purposes  of  commerce,  either  with 
Nicaragua  or  with  the  interior  of  Costa  Rica,  through  the 
San  Carlos  or  Sarapiqui  rivers,  or  any  other  way,  starting 
from  the  part  of  the  bank  of  the  San  Juan  river  which  is 
hereby  established  to  belong  to  Costa  Rica.  The  vessels  of 
both  countries  shall  have  the  power  indiscriminately  to  land 
on  both  sides  of  the  river,  in  the  part  thereof  in  which  navi- 
gation is  common,  without  charges  or  tax  of  any  kind,  un- 
less levied  by  agreement  between  the  two  Governments." 

And,  by  note  of  the  4th  of  March  immediately  following, 
the  Nicaraguan  Secretary  of  State  replied  as  foUows : 

"National  Palace, 

"  Managua,  March  4,  1861. 
"  Sir  :  The  Chamber  of  Deputies,  upon  consideration  of 
the  remarks  made  by  you  under  instructions  of  your  Gov- 
ernment, under  date  of  the  2d  instant,  has  been  pleased  to 
resolve  as  follows :     *     •5«-     * 

"  And  the  Chamber  further  resolved  to  communicate  to  the 
Department  under  my  charge  for  the  information  of  Senor 

Volio,  THAT  BEFORE  RECEIVING  THE  COPY  OF  HIS  RESPECTABLE 
OFFICIAL  DESPATCH,  AND  WHEN  THE  CHAMBER  WAS  ENGAGED  IN 
THE  EXAMINATION   OF  ARTICLE  VII   OF   THE   ABOVE-NAMED    CON- 


85 


TRACT,  IT  HAD  ALREADY  RESOLVED  TO  INSERT  A  CLAUSE  BY  WHICH 
THE  RIGHTS  OF  CoSTA  EiCA  WERE  SAVED,  AS  SUGGESTED  IN  THE 
FIRST  POINT  OF  THE  ABOVE-NAMED  OFFICIAL  DESPATCH,  AND  IN  SO 

DOING  THE  Chamber  has  done  nothing  else  than  complying 

WITH  ONE  of  its  MOST  STRICT  DUTIES." 

"  And,  by  order  of  the  President,  I  transmit  it  to  you,  sub- 
scribing myself  at  the  same  time  your  most  attentive  servant, 

"J.  MIGUEL  CAEDENAS. 

"  To  the  Licentiate  Don  Julian  Volio, 

"  Envoy  Extraordinary  and  Minister  Plenipotentiary 
"  of  the  Republic  of  Costa  Rica^ 

The  foregoing  despatch  is  the  answer  given  to  the  note  ad- 
dressed by  Licentiate  Don  JuHan  Volio,  Minister  of  Costa 
Eica  in  Nicaragua,  under  date  of  February  23,  1861,  sug- 
gesting to  the  Government  of  Nicaragua  to  save  by  an  especial 
clause  in  the  contract  of  transit  the  rights  acquired  by  Costa 
Eica  under  Article  YI  of  the  treaty  of  limits  of  1858. 

Article  YII,  of  the  law  making  the  grant  in  favor  of  the 
Central  American  Company  of  Transit,  enacted  by  the  Nic- 
araguan  Chambers,  confirined  and  ratified,  solemnly,  the  treaty 
of  April  15,  1858  ;  and  anticipated  the  wishes  of  the  Gov- 
ernment of  Costa  Eica,  founded  on  the  said  treaty,  by  stating 
that,  in  doing  so,  they  only  complied  with  one  of  their  most 
strict  duties. 

In  1863  John  E.  Eussell  and  Don  Jos6  Eosa  Perez  sub- 
mitted to  the  Government  certain  propositions  intended  to 
be  the  bases  for  an  enterprise  of  interoceanic  transit  through 
the  Nicaraguan  Isthmus ;  and,  the  subject  having  been  referred 
to  the  consideration  of  the  Legislature,  the  latter  resolved  to 
refrain  from  taking  any  action  on  it  until  the  Executive  should' 
have  complied  with  the  provisions  of  Article  VIII  of  the  treaty 
of  limits  concluded  vnth  Costa  Rica  in  1858. ^ 

This  was  a  new  authentic  recognition  by  the  Nicaraguan 
legislative  power  of  the  fact  that  the  treaty  was  a  law  of  the 


^  Documents,  Nos.  30  and  31. 


86 

Kepublic.  And  if  the  second  ratification  spoken  of  would 
have  been  necessary,  the  recognition  now  made  should  be 
considered  as  such. 

In  1864  arrangements  were  undertaken  in  Nicaragua  for 
an  enterprise  of  interoceanic  canal,  at  the  head  of  which  ap- 
peared Mr.  Bedford  Clapperton  Trevelyn  Pirn,  a  Captain  in 
the  English  Navy.  The  Government  celebrated  with  him  a 
contract,  which  was  submitted  to  the  consideration  of  the 
Chambers.  And  one  of  the  modifications  which  the  Legisla- 
ture made  to  the  contract  was  to  insert  in  it  the  express  pro- 
vision that  the  contract  would  have  no  effect  until  the  Execu- 
tive should  have  heard  the  opinion  of  the  Government  of  Costa 
Rica.^ 

The  territory  of  Costa  Kica  was  not  touched  in  this  case  ; 
but  the  treaty  of  1858  provided  that  Costa  Kica  should  be 
heard  in  all  grants  of  this  kind,  and  the  Chambers  refused  to 
consent  to  any  omission  on  the  part  of  the  Executive  in  fulfil- 
ing  an  international  engagement. 

We  see,  therefore,  that  instead  of  that  second  ratification, 
which  in  1871  Secretary  Ay  on  failed  to  discover,  I  have 
shown  that  actually  there  have  been  four,  and  I  should  still 
be  able  to  show  a  great  man}^  more  by  only  slightly  perusing 
the  laws  of  Nicaragua,  which  seem  to  be  so  lamentably  un- 
known or  forgotten  by  some  of  her  first  statesmen  of  the 
present  day. 

If  I  open  the  volume  published  under  the  title  of  "  Codigo 
de  la  Legislacion  de  la  Kepiiblica  de  Nicaragua  en  Centro 
America"  (Code  of  the  Laws  of  the  Republic  of  Nicaragua  in 
Central  America),  compiled  by  Dr.  and  Master  Lie.  Don 
Jesus  de  la  Rocha,  by  order  of  His  Excellency  the  Senator 
President,  Don  Nicasio  del  Castillo,  &c.,  <fec.,  Managua,  1874, 
I  find  on  its  very  first  page  a  description  of  the  territorial 
division  of  Nicaragua,  made  in  pursuance  of  the  laws  of  Au- 
gust 28,  1858,  and  March  2,  1859.      And  that  description, 


Document  No. 


87 

which  I  do  not  copy  here,  owing  to  its  considerable  length, 
is  based  upon  the  treaty  of  limits  with  Costa  Kica,  and  does 
not  include,  as  it  could  not,  in  the  Nicaraguan  territory, 
the  district  of  Nicoya,  which  before  the  treaty  had  been  dis- 
puted between  the  two  Eepublics,  and  which  after  the  treaty 
had  been  tinally  recognized  to  belong  to  Costa  Eica. 

The  law  in  which  this  territorial  division  appears,  and 
which  is  the  first  one  of  Title  1,  Book  IV,  of  the  Code  of 
Nicaragua,  is  the  basis  of  the  administration  of  her  Govern- 
ment in  economical  and  political  matters,  as  well  as  munici- 
pal, judicial,  electoral,  and  in  all  that  is  relative  to  general 
police  and  public  order.     So  the  law  itself  declares. 

I  do  not  feel  disposed  to  enter  into  a  minute  examination 
of  the  domestic  law  of  Nicaragua,  and  thereby  exhibit  fur- 
ther eloquent  proofs,  certainly  to  be  found  abundantly,  that 
the  treaty  was  deeply  incorporated  and  embodied — if  so  it 
can  be  said — into  all  the  branches  of  law,  beginning  with  the 
Constitution  and  ending  with  the  most  secondary  statute. 
Such  a  labor  is  unnecessary  ;  the  proofs  already  given  being 
sufficient  to  establish  the  truth  of  my  assertion.  One  ratifi- 
cation was  sufficient,  and  I  have  shown  that  four  were  given. 

Many  and  repeated  have  been,  therefore,  the  legislative 
confirmations  and  ratifications  made  in  Nicaragua  of  the 
treaty  of  limits  of  1858  ;  but  the  truth  is  that  the  Govern- 
ment of  the  said  Republic  does  not  repudiate  that  treaty 
because  it  lacks  the  formality  of  ratification  by  one  Legisla- 
ture, but  because  it  thinks  that  it  is  injurious  to  its  interests. 

I  am  not  the  one  who  has  made  this  strange  assertion.  Its 
author  is  no  less  a  person  than  Gen.  Don  Joaquin  Zavala,  the 
Commissioner  appointed  in  1872  by  the  Government  of  Nic- 
aragua to  treat  with  Dr.  Don  Yicente  Herrera,  Minister  of 
Costa  Rica. 

General  Zavala,  in  his  despatch  of  April  8, 1872,  expressed 
himself  as  follows  : 

"  The  public  opinion  of  the  country  rejects  the  Canas-Jerez 
treaty,  not  because  it  lacks  the  batification  of  one  legis- 


88 

LA.TURE,  but  because  since  the  unlucky  day  in  which  that  docu- 
ment was  signed  it  has  considered  it  as  highly  injurious  to 
the  interests  of  the  country  and  depressive  to  its  dignity  and 
autonomy."^ 

These  words,  which  the  Costa  Rican  Minister,  with  pro- 
found surprise  and  deep  sorrow,  read  in  an  official  despatch 
addressed  to  him,  were  transmitted  by  him  to  the  Cabinet  of 
Managua ;  but  this,  far  from  taking  them  back,  gave  them, 
on  the  contrary,  through  Senor  Don  Auselmo  H.  Rivas,  the 
Secretary  of  Foreign  Relations,  by  despatch  of  April  18, 
1872,  the  most  complete  confirmation. 

And  how  could  it  be  expected  that  those  words  would  have 
been  taken  back  if,  as  stated  by  Mr.  C.  A.  Riotte,  the  United 
States  Minister  in  Central  America,  in  his  note  to  Mr.  Fish, 
Secretary  of  State  of  the  United  States,  dated  in  Managua  on 
the  20tli  of  June,  1872,  the  editor  of  the  official  journal  pub- 
licly maintained,  in  a  paper  named  El  Porve7iir,  that  it  was  a 
maxim  of  international  law  that  the  stipulations  of  a  treaty 
must  be  complied  with  only  when  advantageous,  or  as  long 
as  there  is  no  power  to  break  them  ?  Did  not  this  untena- 
ble and  revolting  opinion  receive  general  support  instead 
of  condemnation  in  the  Republic  of  Nicaragua  ?  ^ 


^This  despatch  is  inserted  in  "Documentos  relatives  a  las  ultimas  nego- 
ciaciones  entre  Nicaragua  y  Costa  Rica  sobre  limites  territoriales.  Canal 
interoceanico,  Managua,  1872. 

=^  Foreign  Relations  of  the  United  States  in  1873,  Vol.  ii,  p.  738. 


Chapter    VI. 

THE  PUBLIC  LAW  OF  NICARAGUA  RECOGNIZES  THE  PRINCIPLE  THAT  THE 
REPUBLIC  IS  BOUND  BY  AN  INTERNATIONAL  TREATY,  WHATEVER  THE 
IMPORTANCE    THEREOF    MAY   BE. 

It  has  been  seen  in  the  foregoing  chapter  that  the  deter- 
mination and  alteration  of  the  national  territory  does  not 
belong  in  Nicaragua  to  the  organic  laws,  but  to  statutory 
legislation. 

The  Nicaraguan  Public  Law  goes  still  farther,  as  I  am  go- 
ing to  show. 

By  the  treaty,  Zeledon-Wyke  of  January  28,  1860,  Great 
Britain,  up  to  that  time  protectress  of  what  is  called  the  King 
of  Mosquitia,  recognized  the  sovereignty  of  the  Eepublic  of 
Nicaragua  over  the  whole  territory  under  him  ;  but,  in  1867, 
the  very  same  power  deemed  it  advisable  to  notify  Nicaragua 
that  the  said  Nicaraguan  sovereignty  over  Mosquitia  could 
not  be  understood  to  be  full  and  complete,  but  limited  to  only 
those  rights  which,  according  to  feudal  law,  the  Supreme  Lord 
retained  in  the  domains  of  his  vassals,  and  consisted  only  in 
preventing  the  fief  from  being  alienated  in  favor  of  a  third 
party. 

The  Government  of  Nicaragua  refused  to  accept  such  a 
construction  which  left  to  that  Kepublic  no  more  than  a 
nominal  sovereignty  over  a  territory  which  really  was  an  in- 
tegral part  of  her  dominion,  and  suggested  to  Her  British 
Majesty  that  the  question  should  be  submitted  to  arbitra- 
tion. The  proposition  was  accepted,  and  by  common  con- 
sent His  Majesty  the  Emperor  of  Austria  was  appointed 
to  decide  the  question. 

From  the  very  moment  in  which  that  matter  was  referred 
to  arbitration,  it  was  recognized  as  possible  that  the  decision 
might  be  unfavorable,  as  it  was  to  a  great  extent,  to  Nicara- 


90 

gua,  and  that  thereby  the  national  sovereignty  might  suffer 
detriment.  Therefore,  in  order  that  the  treaty  of  arbitration 
celebrated  mth  Great  Britain  should  be  firm  and  binding 
upon  Nicaragua,  it  was  necessary  that  it  should  be  clothed 
with  all  and  each  one  of  the  formalities  which  the  Constitu- 
tion prescribed. 

It  cannot  be  believed  that  a  serious  Government  as  the 
Nicaraguan  is,  in  dealing  with  such  a  grave  and  transcendental 
matter  and  with  such  a  Government  as  that  of  Her  British 
Majesty,  would  have  indulged  in  mental  reservations  and 
omitted  formalities  constitutionally  required  for  the  validity 
of  the  treaty.  It  must  be  taken  for  granted,  on  the  contrary, 
as  has  been  said,  that  every  required  formality  was  faithfully 
complied  with. 

But  it  appears  that  this  treaty,  which,  no  doubt,  referred 
to  a  question  much  more  important  for  Nicaragua  than  the 
one  settled  by  the  treaty  of  limits  of  1858,  since  it  did  not 
involve  a  simple  adjustment  of  disputed  rights,  but  the  affir- 
mation or  negation  of  her  sovereignty  over  an  important 
portion  of  her  territory  which  had  been  formerly  recognized 
by  Great  Britain,  did  not  obtain,  howevek,  double  legisla- 
tive APPKOVAL.  And  this  being  the  fact,  it  seems  that  it 
proves  by  itself,  without  possible  contradiction,  that  the  pub- 
lic law  of  Nicaragua,  in  conformity  in  this  respect  with  the 
laws  of  most  civilized  nations,  recognized  the  principle  that 
a  nation  binds  itself  by  its  public  treaties,  even  in  matters 
not  purely  commercial  but  concerning  territorial  integrity 
and  the  exercise  of  sovereignty. 

On  June  2,  1881,  Etnperor  Francis  Joseph  I  rendered  his 
decision,  which,  among  other  things,  declared  that  the  sov- 
ereignty of  Nicaragua  over  Mosquitia  is  not  full,  but  limited  ; 
that  the  Mosquito  King  has  the  right  to  use  his  own  flag ; 
that  Nicaragua  has  no  right  to  control  or  take  advantage  of 
the  natural  productions  of  the  Mosquitian  territory,  nor  the 
power  to  regulate  the  commerce  of  the  Mosquito  Indians, 
&c.,  &c.     And  Nicaragua  accepted  with  respect  the  decision 


I 


91 

of  His  Apostolic  Majesty,  and  ordered  it  to  be  complied  with 
and  carried  out  faithfully,  without  thinking  for  a  moment 
that  by  invoking  the  omission  of  a  double  legislative  ap- 
proval she  might  evade  the  consequences  of  a  decision  which 
indisputably  affects  her  sovereignty  and  reduces  the  territory 
of  the  Kepublic. 

Far  from  that,  the  official  organ  of  the  Government  ex- 
pressed itself  at  that  time  in  the  following  words : 

"  Let  us  congratulate  ourselves  that  questions  as  old  (1865) 
and  embarrassing  as  these  have  been  settled  in  such  a  peace- 
ful and  harmonious  way." 

In  view  of  this  precedent  it  can  be  affirmed  without  hesita- 
tion that  according  to  the  Nicaraguan  public  law,  in  order 
to  render  international  conventions  firm  and  valid,  no  mat- 
ter what  their  nature  may  be,  and  even  when  affecting  the 
national  territory  and  sovereignty,  it  is  not  necessary  to 
amend  the  Constitution. 

Let  it  not  be  said  that  one  thing  is  a  treaty  of  limits  and 
another  thing  a  treaty  of  arbitration.  As  public  treaties,  the 
one  and  the  other,  there  is  no  difference  between  them  ;  and, 
on  the  contrary,  it  plainly  appears  that  the  same  effect,  which 
is  the  dismemberment  of  the  territory,  or  the  abridgement  of 
sovereignty,  can  be  accomplished  in  the  same  way  by  each  of 
them. 

If  any  difference  can  be  found,  or  suggested,  it  will  be  in 
favor  of  the  direct  treaty  of  limits ;  because  if  something  is 
given  up  by  it,  something,  or  a  great  deal,  is  also  obtained 
through  it  in  compensation ;  while  in  the  treaty  of  arbitra- 
tion the  whole  thing  is  placed  in  danger.  For  this  reason 
the  effects  of  the  treaty  of  arbitration  are  graver. 

The  legal  principle  that  the  only  one  who  can  compromise 
or  submit  to  arbitration  is  the  same  one  who  has  the  right 
to  alienate  the  thing  in  controversy,  is  perfectly  well  known 
and  needs  no  demonstration.  From  the  point  of  view  of  the 
capacity  and  of  the  form  of  the  transaction,  there  is  com- 
plete identity  between  alienation,  compromise,  and  submis- 
sion to  arbitration. ' 


92 

When  the  dispute  about  Mosquitia  was  submitted  to  ar- 
bitration all  the  formalities  and  requisites  which  are  now 
claimed  to  be  wanting  in  the  treaty  with  Costa  Eica  should 
have  been  also  complied  with,  and,  if  they  were  not,  their 
omission  proves  only  that  the  public  powers  of  Nicaragua 
did  not  consider  them  necessary,  according  to  their  constitu- 
tional law,  for  the  validity  of  a  treaty,  whatever  its  impor- 
tance might  be. 


Chapter    VII. 

THE    WHOLE    OF    THE    PRESENT    CONTROVERSY    RESTS  SUBSTANTIALLY  UPON 

THE    USE    OF    A    CERTAIN    WORD VALIDITY' OF    THE    TREATY   IN    GOOD 

FAITH. 

Now,  I  want  to  lay  aside  all  that  has  been  said  in  the  fore- 
going chapters  in  support  of  the  perfect  validity  of  the  treaty 
of  liroits,  and  place  myself  on  a  ground  much  more  favora- 
ble to  the  cause  of  the  opponent ;  that  is,  that  the  treaty 
really  involved  a  reform  of  the  Constitution  of  1838. 

Even  on  that  ga;ound,  which  I  only  accept  for  the  sake  of 
the  argument,  because  it  is  false,  I  will  show  that  the  approval 
given  to  the  treaty  by  the  Assembly  was  clothed  with  the 
character  of  an  amendment  to  the  Constitution. 

If  the  argument  of  the  opponent  is  carefully  examined  it 
will  be  found,  without  any  great  effort,  that  the  whole  of  the 
present  discussion  rests  fundamentally  on  the  use,  whether 
proper  or  improper,  of  one  word. 

The  preamble  of  the  decree,  by  which  the  treaty  of  limits 
was  approved,  reads  as  follows  : 

''  No.  62. 

"  The  Constituent  Assembly  of  the  Eepublic  of  Nicaragua, 
in  use  of  the  legislative  faculties  with  which  it  is  invested, 
decrees,"  &c.,  &c. 

Should  the  language  just  quoted  have  been  changed  into, 
and  substituted  by,  the  following : 

"  The  Constituent  Assembly  of  the  Eepublic  of  Nicaragua, 
in  use  of  its  faculties,  decrees,"  &c.,  &c.; 
or  simply  by 

"  The  Constituent  Assembly  of  the  Eepublic  of  Nicaragua 
decrees,"  &c.,  &c. — 
the  present  controversy  would  have  been  avoided.     No  one 


94 

could  have  then  said  that  a  Legislature,  and  not  a  constituent 
body,  had  approved  the  treaty. 

The  gist  of  the  reasoning  of  Sen  or  Ayon  lies  in  the  word 
"  legislative,"  which  was  used  in  the  decree.  Remove  that 
foundation  and  the  whole  building  raised  upon  it  by  Senores 
Ayon,  Rivas,  and  Zavala  will  fall  to  the  ground  with  a  mighty 
crash. 

The  question  is,  therefore,  reduced  to  only  one  word. 

Now,  it  cannot  be  doubted  that  the  Assembly  acted  seri- 
ously, and  with  the  intention  that  its  action  should  be  effi- 
cient ;  and  under  this  assumption,  and  following  the  same 
order  of  ideas  of  the  opponent,  it  must  be  reasonably  sup- 
posed that  it  was  only  by  mistake,  or  through  a  lapsus  calami, 
that  the  decree  of  approval  misstated  the  kind  of  power  which 
was  necessary  to  give  the  act  all  the  desired  efficiency  ;  other- 
wise, instead  of  an  error,  bad  faith  would  be  found,  and  this 
is  inadmissible. 

And  now,  I  ask,  could  ever  the  substance  or  the  subject- 
matter  of  a  decree  be  sacrificed  to  a  simple,  unessential  form  ? 
Could  such  a  thing  be  possible  when  the  Assembly  held  in  its 
hands,  in  an  indivisible  manner,  both  the  legislative  and  con- 
stituent powers,  and  could  exercise,  untrammelled,  whichever 
of  the  two  it  might  deem  best  ? 

Senor  Ayon  says  that  the  Assembly  intended  to  give  a 
chance  to  a  subsequent  Legislature  to  examine  such  a  grave 
and  serious  point  as  was  the  arrangement  of  limits  with  Nic- 
aragua. But,  following  this  line  of  argument,  I  cannot  per- 
ceive how  the  Assembly  did  not  leave,  also,  to  the  subsequent 
Legislature  the  framing  of  the  Constitution  and  the  reorgani- 
zation of  the  country — points,  both  of  them,  which  were  indu- 
bitably of  greater  gravity  than  the  fixing  of  limits. 

At  the  present  age,  only  the  theological  casuistry  of  certain 
sects  admits  of  sacramental  words  ;  but  the  public  law  of 
nations  admits  of  none,  and  truth  and  good  faith,  and  not 
legal  subtleties,  are  called  to  preside  over  the  relations  be- 
tween countries. 


95 

A  word  badly  used,  if,  indeed,  so  used,  which  I  do  not  ad- 
mit, in  the  text  of  the  document  witnessing  the  obligation 
contracted,  never  could  destroy  the  efficiency  of  the  substance 
or  subject-matter  of  the  obligation  itself. 

Calvo,  a  well-accepted  authority  in  the  modern  law  of  na- 
tions, in  handling  this  question,  decides  it  as  follows  : 

"  When  the  expression,  although  intrinsically  correct  under 
the  circumstances,  does  not  convey  the  idea  involved  in  it, 
but  inexactly,  it  is  evidently  necessary,  as  the  jurists  say,  to 
sacrifice  the  means  to  the  end,  set  the  word  aside,  and  look 
at  nothing  else  than  the  idea  itself."  ^ 

"  International  treaties,"  he  says  elsewhere,  "are before  all 
actus  honoejideiy 

At  the  bottom  of  the  more  or  less  correct  wording  of  the 
Nicaraguan  approval  of  the  treaty  lays  the  consent  of  the 
Nicaraguan  nation,  expressed  by  an  Assembly  legally  repre- 
senting her,  vested  with  unlimited  powers  to  reform  the  Con- 
stitution and  to  organize  and  regulate  the  relations,  both 
foreign  and  domestic,  of  the  Kepublic. 

If,  for  the  validity  of  the  obligation  thereby  contracted, 
it  was  necessary,  according  to  the  domestic  law  of  the  State, 
that  the  compact  should  be  clothed  with  the  character  of  a 
constitutional  amendment,  that  character  was  given  to  it, 
virtually  and  implicitly,  by  the  mere  fact  that  the  approval 
was  made  by  a  Constituent  Assembly,  with  the  full  intent 
and  purpose  that  it  should  be  efficient  in  every  respect. 
Whatever  language  was  used  in  the  preamble  of  the  de- 
cree makes  no  difference.  Put  the  badly-used  word  aside, 
and  only  consider  the  meaning  which  it  was  intended  to 
convey. 

It  is  a  principle  of  legal  hermeneutics  that,  in  the  inter- 
pretation of  compacts,  both  between  private  parties  and  na- 
tions, that  sense  which  produces  some  effect  should  be  pre- 
ferred to  that  which  produces  none.     If  the  Assembly  meant 


^  Calvo.     Droit  international,  theorique  practique. 


96 

to  stipulate  in  favor  of  Nicaragua,  and  bind  her,  in  her  turn, 
an  intention  about  which  no  reasonable  doubt  can  exist,  it 
must  be  thought  that  it  rather  acted  as  a  constituent  body 
exercising  all  its  faculties,  than  as  a  simple  ordinary  Legisla- 
ture with  restricted  powers  whose  deeds  were  subject  to  a 
subsequent  ratification,  of  which  no  one  dreamt  at  that  time. 

On  the  19th  of  August,  1858,  the  date  of  the  new  Consti- 
tution, the  Constituent  Assembly,  which  had  framed  it,  en- 
acted a  decree  directing  itself  to  continue  to  exercise  the 
legislative  power  of  the  nation  until  the  new  Constitutional 
Congress  should  meet. 

If,  after  that  date,  the  treaty  of  limits  should  have  been 
approved,  then  some  shadow  of  reason  would  exist  for  claim- 
ing that  it  had  been  approved  by  a  legislature  and  not  by  a 
constituent  body ;  but  as  the  ratification  of  the  treaty  was 
made  some  months  before  the  19th  of  August,  1858,  at  a  time 
in  which  the  Assembly  was  vested  with  all  kinds  of  powers, 
it  cannot  be  doubted  that  it  acted  in  the  capacity  of  a  con- 
stituent body,  and  with  the  plenitude  of  faculties  which  was 
required  to  give  perfect  efficiency  to  its  action.  No  other  con- 
clusion can  be  reached  in  good  faith — the  only  possible  cri- 
terion in  international  conventions. 


Chapter    YIII. 

REPEATED  ACKNOWLEDGMENTS  OF  THE  VALIDITY  OF  THE    TREATY    BY   DIF- 
FERENT NICARAGUAN   ADMINISTRATIONS. 

It  has  been  said  in  Nicaragua  that  the  treaty  of  limits 
never  reached  perfection  ;  that  it  never  went  beyond  the  cat- 
egory of  a  project ;  that  it  never  served  as  a  basis  for  laws 
or  treaties,  or  for  the  relations  between  Costa  Eica  and  Nic- 
aragua ;  and  that  the  Nicaraguan  Government  never  recog- 
nized its  validity.  But  there  is  such  an  abundance  of  docu- 
ments which  prove  the  contrary  that  it  would  be  tiresome  to 
cite  them  all.  For  this  reason  I  shall  confine  myself  to  the 
principal  ones. 

In  the  "  Official  Gaceta  "  of  Nicaragua,  No.  15,  of  May  8, 
1858,  the  treaty  of  limits  was  published,  not  as  a  project, 
not  as  a  law  in  process  of  enactment,  but  as  an  international 
compact  already  entered  into,  accomplished,  and  perfected, 
and  having  the  Exequatur  required  for  its  being  carried  into 
effect. 

In  the  letter  by  which  Gen.  Don  Juan  Rafael  Mora,  Pres- 
ident of  Costa  Rica,  took  leave  of  Gen.  Don  Tomas  Mar- 
tinez, President  of  Nicaragua,  subsequent  to  the  exchange  of 
the  ratifications  solemnly  made  by  the  two  Presidents,  at- 
tended by  their  respective  Secretaries  of  State,  the  following 
phrases  occur :  "  The  great  purposes  which  caused  us  to 
meet  in  the  city  of  Rivas  having  been  fully  accomplished 
with  so  much  happiness,  I  return  to  my  country,"  (fee,  &c. 
"  I  congratulate  myself  for  having  had  the  good  fortune  of 
signing,  together  with  Your  Excellency,  the  compact  which 
puts  an  end  to  all  our  causes  of  misunderstanding  and  un- 
pleasantness." 

The  official  paper  above  referred  to  printed,  also,  the  fol- 
lowing :  "  Those  hands  which  have  just  grasped  each  other 
7 


9S 

have  not  done  so  in  vain ;  the  assurances  of  peace  and  eter- 
nal friendship  which  have  been  given  spring  from  a  deep 
conviction,  and  snch  a  permanent  one  as  scarcely  has  been 
seen  to  preside  over  the  treaties  among  nations." 

Col.  Negrete  was  given  by  the  Government  of  Nicaragua, 
in  recognition  of  his  good  offices,  the  rank  and  title  of  Gen- 
eral in  the  Nicaraguan  army. 

All  these  facts  and  documents  prove  that  the  treaty  was 
final,  perfect,  and  binding  upon  the  nation,  and  that  Nicara- 
gua believed  herself,  with  reason,  to  have  been  benefited  by 
it.  Shortly  after  the  exchange  of  the  ratification  of  the  treaty, 
an  enterprise  of  interoceanic  canal  was  initiated  in  Nicara- 
gua. Under  Article  VIII  of  the  instrument,  Costa  Rica  had 
the  right  to  express  its  opinion  upon  the  subject,  and  the 
Nicaraguan  Government,  in  compliance  with  the  said  provis- 
ion, informed  the  Government  of  Costa  Eica  of  the  nature 
and  circumstances  of  the  contract,  and  in  the  official  despatch, 
in  which  the  Nicaraguan  Secretary  of  State  transmitted  that 
information,  he  took  pains  to  state  that  he  did  it  for  the  pur. 
pose  of  complying  with  the  engagement  of  this  Republic  (Nic- 
aragua) with  Costa  Bica,  set  forth  in  Article  VIII  of  the 
treaty  of  limits^  and  in  order  that  when  the  opinion  of  the  Gov- 
ernment of  Costa  Rica  is  heard  the  proper  final  action  may  he 
taken  hy  this  Government. 

At  all  times,  and  without  a  single  exception,  the  Govern- 
ment of  Nicaragua  did  always  comply  faithfully  with  the  pro- 
visions of  Article  VIII,  as  shown  by  the  documents  ap- 
pended to  this  argument. 

But  laying  aside  this  point,  which  may  be  considered  of 
secondary  importance,  and  looking  for  something  graver  and 
more  transcendental  than  the  right  acknowledged  to  Costa 
Rica  of  passing  an  opinion  upon  questions  about  canal  and 
transit,  I  shall  now  refer  to  the  most  delicate  subject  of  the 
frontier. 

By  despatch  of  April  27,  1859,  the  Nicaraguan  foreign 
office  acknowledged  that  the  national  territory  of  Nicaragua 
ends  at  the  Salinas  Bay.     According  to  Article  II  of  the 


treaty  of  limits  of  1858,  the  Salinas  Bay  is  the  western  ex- 
tremity of  the  border  line.  Therefore  the  declaration  of  the 
Nicaraguan  Secretary  of  State  presupposed  the  validity  and 
efficiency  of  the  treaty  which  marked  that  limit. 

By  official  letter  of  August  3,  of  the  same  year,  from  the 
same  Nicaraguan  foreign  office,  Costa  Eica  was  requested  to 
withdraw  its  custom-houses  and  other  revenue  posts  from  the 
La  Flor  river,  which  was  the  ancient  boundary  between  the 
two  countries,  and  situate  them  on  the  new  line  marked  by 
the  treaty  of  1858,  and,  in  order  to  avoid  difficulties,  it  sug- 
gested the  idea  that  the  astronomical  line  provided  for  by  the 
treaty  should  be  actually  and  materially  drawn  and  located. 

This  shows  evidently  that  the  validity  and  efficiency  of  the 
treaty  was  recognized. 

Several  years  afterwards,  on  January  12,  1867,  Nicaragua 
complained  that  a  sanitary  cordon  established  by  the  Gov- 
ernment of  Costa  Rica  had  trespassed  upon  her  territory  by 
crossing  the  frontier  established  by  the  treaty  of  1858.  This 
complaint  implied  the  recognition  of  the  validity  of  the  treaty. 

This  is  as  far  as  the  western  extremity  of  the  line  is  con- 
cerned. Let  us  see,  now,  what  happened  in  regard  to  the 
other  extremity. 

On  December  13,  1859,  Nicaragua  asked  Costa  Rica  to  as- 
sist her  in  improving  the  navigation  of  the  San  Juan  river, 
and  said  that  she  did  not  doubt  the  co-operation  of  Costa 
Rica,  because,  under  the  treaty  of  limits,  Costa  Rica  had  as 
much  interest  as  Nicaragua  in  the  navigation  of  the  river. 

On  September  5,  1860,  Nicaragua  reminded  Costa  Rica  of 
the  duty  which  devolved  upon  it,  under  Article  IV  of  the 
treaty,  to  contribute  to  the  defence  of  the  San  Juan  river 
and  of  the  Bay  of  San  Juan,  and  to  the  custody  of  the  other 
extremity  on  the  border  line,  the  Salinas  Bay. 

In  1863  a  grave  diplomatic  difficulty  between  the  United 
States  and  Nicaragua  grew  out  of  certain  claims  made  by 
American  citizens  before  the  Cabinet  at  Washington,  wherein 
it  was  supposed  that  Nicaragua  had  publicly  insulted  the 
flag  of  the  United  States. 


100 

The  Nicaragua!!  Minister,  Don  Luis  Molina,  handled  the 
case  successfully,  and  a  settlement  satisfactory  to  both  par- 
ties was  reached,  wherein  the  principle  was  established,  that 
on  the  Nicaraguan  soil  and  waters  no  other  flag  could  right- 
fully be  carried  than  the  one  of  Nicaragua. 

In  the  letter  addressed  to  Mr.  WilliaDQ  H.  Seward,  Secre- 
tary of  State  of  the  United  States,  on  October  7,  1863,  the 
Nicaraguan  diplo!natist  expressed  himself  as  follows  : 

"  On  the  other  hand  I  can  assure  Your  Excellency  that  the 
present  administration  of  Nicaragua  does  not  feel  disposed 
to  consent  that  any  other  flag,  except  her  own  and  the  one 
OF  Costa  Eica,  as  bokdering  state,  should  float  in  the 
navigation  of  her  interior  waters  ;  that  it  considered  as  un- 
authorized the  use  of  the  United  States  flag  made  by  the  Cen- 
tral American  Transit  Company,  and  even  by  the  least  of  its 
laborers,  for  the  purpose  of  evading  the  orders  of  the  (3rov- 
ernment  and  escaping  the  authority  of  Nicaragua ;  and  that 
it  being  persuaded  that  such  an  abuse  ca!i  lead  only  to  com- 
plications, it  will  maintain  its  right  and  demand  that  the 
aforesaid  Company,  or  any  other  owing  its  existence  to  it, 
be  rooted  and  nationalized  in  the  country  in  accordance  with 
the  Law  of  Nations,  and  that  the  i!ational  flag  be  used  pre- 
eminently whenever  a  flag  be  required  within  her  jurisdiction, 
without  admitting  a!!y  other,  except  under  exceptional  cir- 
cumstances and  through  courtesy." 

There  cannot  be  found  a  more  striking  acknowledgment 
of  the  rights  of  Costa  Eica  under  the  treaty  of  1858. 

Neither  the  United  States  of  America  nor  any  other  power 
has  the  right  to  carry  its  flag  into  the  interior  Nicaraguan 
waters,  this  right  belonging  only  to  Nicaragua  herself  by 
virtue  of  her  sovereignty  and  to  Costa  Rica  as  a  hordering 
nation. 

The  action  of  the  Nicaraguan  Minister  in  Washington  was 
not  only  approved  and  commended,  but  especially  rewarded 
by  the  Government  of  that  country. 

The  fact  was  made  known  to  the  Chambers,  and  they  also 
approved  what  had  been  done. 


101 

In  1864  the  project  was  made  in  Costa  Kica  of  opening  a 
road  from  the  interior  of  the  country  to  the  San  Juan  river, 
and  notice  of  this  enterprise  was  given  to  the  Government  of 
Nicaragua,  and  in  the  answer  made  by  the  said  Government 
on  the  23d  of  August  of  the  same  year  the  following  was  said : 
'^This  road  may  he  huilt  up  to  the  San  Juan  rive7\  always 
within  the  territory  of  your  Republic^  according  to  the  treaty 
limits  made  with  Nicaragua ;  but  it  may  also  be  built,  for 
the  sake  of  shortening  the  distance,  in  the  territory  which 
Nicaragua  reserved  for  herself  for  the  safety  and  protection  of 
Castillo  Yiejo  and  the  communication  between  that  castle 
and  San  Carlos ;  and  in  that  case  a  previous  arrangement 
between  the  two  Governments  should  be  required." 

By  the  treaty  of  1858  the  Colorado  river  was  declared  to 
belong  to  Costa  Erica.  The  Transit  Company  attempted  to 
close  the  mouth  of  that  river,  and  Costa  Rica  protested  be- 
fore the  Government  of  Nicaragua  against  that  outrage. 

The  Nicaraguan  Government,  under  date  of  July  21,  1863, 
wrote  to  the  United  States  Minister,  and  told  him,  for  the 
information  of  the  Company,  that  Nicaragua  could  not  allow 
the  mouth  of  the  Colorado  river,  which  was  situated  in  Costa 
Rican  territory^  to  be  closed,  and  that  it  would  resist  it  as 
Costa  Rica  did.  In  transcribing  this  communication  to  the 
Minister  of  Costa  Rica,  he  added  :  "  I  assure  you  that  my 
Government  will  always  prevent  any  new  work,  which  may  be 
attempted  in  the  territory  of  your  Republic,  from  being  exe- 
cuted." 

In  1866  another  attempt  was  made  to  obstruct  the  mouth 
of  the  Colorado  river,  and  Costa  Rica  again  protested  against 
it.  The  Nicaraguan  Government,  in  despatch  of  June  26, 
stated  that  the  Government  of  Costa  Rica  could  rest  assured 
that,  on  the  part  of  Nicaragua,  the  rights  claimed  by  it  should 
always  be  respected,  and  that  the  proper  care  would  be  taken 
to  prevent  its  interests  from  sustaining  detriment. 

Can  any  one  desire  a  more  explicit  confession  of  the  validity 
of  the  treaty  of  1858,  and  of  the  intention  to  faithfully  com- 
ply with  it  ? 


102 

In  1869,  shortly  before  the  denunciation  of  the  treaty,  the 
"  Gaceta  de  Nicaragua  "  expressed  itself  as  follows  : 

"  It  is  indubitable  for  the  foregoing  reasons  that  our  contract 
of  canal  has  been  made  under  the  most  favorable  auspices. 
What  now  remains  is  only  that  the  Kepublic  of  Costa  Eica 
co-operates  on  its  part  in  its  realization,  and  in  fact  the  topo- 
graphic situation  of  the  San  Juan  river  and  of  the  Lake  of 
Nicaragua,  which  serve  for  some  distance  as  dividing  line 
BETWEEN  THE  TERRITORY  OF  BOTH  Kepublics,  demands  that  co- 
operation." 

The  "  Gaceta  de  Nicaragua "  is  the  official  organ  of  its 
Government. 

It  is  to  be  noticed  that,  a  few  months  before,  Costa  Eica 
had  closed  the  mouths  of  the  San  Carlos  and  Sarapiqui 
rivers  to  the  abusive  traffic  which  was  carried  on  in  Nicaragua 
of  the  natural  products  of  the  Costa  Eican  forests  on  the 
right  bank  of  the  San  Juan  river. 

Shortly  afterwards,  Don  Mariano  Montealegre,  Minister 
Plenipotentiary  and  Envoy  Extraordinary  of  Nicaragua,  pre- 
sented himself  at  San  Jos6,  the  capital  of  Costa  Eica,  en- 
trusted with  the  special  mission  to  negotiate  for  the  use  of 
the  waters  of  the  Colorado  river,  to  improve  the  San  Juan,  and 
for  obtaining  the  consent  of  Costa  Eica  to  the  canal  contract 
known  as  the  Ayon-Chevalier.  Both  negotiations  were 
founded  upon  the  basis  of  the  existence  and  validity  of  the 
treaty  of  hmits. 

Now,  in  the  presence  of  all  this,  let  it  be  said,  what  is  the 
faith  with  which  it  is  asserted  emphatically  that  the  treaty  of 
limits  never  reached  perfection,  nor  did  it  serve  as  basis  for 
laws  and  for  the  relations  between  Costa  Eica  and  Nicaragua  ; 
let  it  be  said  whether  it  is  true  that  "  there  is  not  a  single 
law,  nor  a  single  act  having  for  basis  that  treaty." 

The  convention  of  limits  was  punctually  observed  by  both 
parties  during  14  years  in  succession,  but  Senor  Ayon  had 
centred  the  ambition  of  his  whole  life  in  the  success  of  the 
contract  which  he  had  celebrated  with  the  French  Senator, 


103 

Monsieur  Chevalier,  and  this  contract  was  frustrated,  as  Senor 
Ayon  believed,  by  the  will  of  Costa  Eica. 

Senor  Ayon,  resenting  this  failure,  considered  that  for  the 
happiness  of  his  country  it  was  required  that  the  treaty  of 
limits  should  be  made  to  disappear,  and  his  fertile  mind  did 
not  take  long  to  find  reasons  for  attacking  it. 

The  simple  reading  of  the  words  with  which  the  same 
Senor  Ayon  prefaces  his  pamphlet,  entitled  "  The  Question 
of  Territorial  Limits  between  the  Kepublics  of  Nicaragua  and 
Costa  Kica,  Managua,  1872,"  will  be  sufficient  to  prove  how 
little  favor  his  opinion  met  with,  in  the  beginning,  in  his 
country.     Here  are  his  words  : 

"  I  EXPECT  THAT  MY  INSISTANCE  IN  SAVING  SUCH  GREAT  OBJECTS 
(the  honor  of  THE  NATION,  HER  WELFARE  AND  PROSPERITY  !  * 
*  "^  )  WILL  NOT  BE  ATTRIBUTED  BY  MY  COUNTRYMEN  EITHER  TO 
STUBBORNNESS,  OR  TO  A  DESIRE  OF  MAKING  MYSELF  CONSPICUOUS  ; 
AND  THAT  EVEN  IN  CASE  THAT  MY  IDEAS  ARE  CONSIDERED  AS  ER- 
RORS OF  THE  UNDERSTANDING,  THEY  WILL  BE  OVERLOOKED  AND 
EXCUSED  ON  THE  GROUND  THAT  THEY  PROCEED  FROM  MY  ZEAL  FOR 
THE  PUBLIC  GOOD.  Of  THOSE  ERRORS  I  DO  NOT  CONSIDER  THAT 
EVEN  THOSE  HAVING  THAT  ZEAL  MORE  DEEPLY  ROOTED  IN  THEIR 
HEARTS  ARE  EXEMPT." 

Interest  is  a  bad  adviser,  and  the  opinion  of  Senor  Ayo^j 
soon  found  followers  ;  but  it  is  worthy  of  remembrance  what 
President  Quadra,  in  his  correspondence,  above  cited,  with 
the  Minister  of  the  United  States,  plainly  set  forth.  He  said 
that  "  his  honesty  and  good  sense  told  him  that  Nicaragua 
should  abide  by  the  stipulations  of  the  treaty,  and  not  touch 
the  old  wound  of  Guanacaste  "  (Nicoya). 

But  the  sense  of  justice  of  Senor  Quadra,  and  his  upright 
spirit,  could  not  prevail  against  the  futile  reasoning  of  Senor 
Ayon. 

The  United  States  Minister  in  Central  America,  at  that 
time,  expressed  himself  as  follows  : 

"  It  is  most  unfortunate  that  Nicaragua  herself,  led  on  by 
that  fatal  man,  Mr.  Ayon,  when  Minister  of  Foreign  Eela- 
tions,  took  the  first  false  step." 


Chapter   IX. 

COSTA  RICA  HAS  NEVER  ADMITTED  THAT  THE  TREATY  OF  LIMITS  REQUIRED 
FOR  ITS  VALIDITY  FURTHER  RATIFICATION. 

It  has  been  argued  that  Costa  Kica  acknowledged  the  in- 
validity of  the  treaty  of  1858  by  the  fact  that  the  Secretary 
of  Foreign  Eelations  of  Costa  Eica,  Don  Agapito  Jimenez, 
in  drawing  up  the  convention  concluded  by  him  with  the 
Plenipotentiary  of  Nicaragua,  Don  Mariano  Montealegre,  on 
July  21,  1869,  allow^ed  a  phrase  to  be  inserted  in  Article  VI 
of  the  instrument  stating  that  Nicaragua  did  thereby  ratify 
that  treaty. 

This  action  of  Senor  Jimenez,  it  is  said,  shows  conclu- 
sively that,  in  1869,  the  Government  of  Costa  Eica  recog- 
nized that  the  treaty  of  1858  was  not  perfect ;  since  other- 
wise it  would  have  been  entirely  unnecessary  to  ask  for  its 
ratification.  This  was  precisely,  they  say,  that  second  ap- 
proval which,  according  to  the  Nicaraguan  Constitution,  could 
really  have  impressed  upon  the  treaty  the  rank  or  character  of 
constitutional  amendment  in  the  matter  of  limits  with  Costa 
Eica. 

It  is  utterly  incorrect  that  the  Government  of  Costa  Eica, 
through  the  instrumentality  of  its  Secretary  of  State,  Don 
Agapito  Jimenez,  did  evfer  at  any  time  ask  the  Nicaraguan 
Government  for  the  ratification  of  the  treaty  of  limits  of  1858. 
The  Costa  Eican  Government  never  doubted  the  validity  of 
the  treaty,  and  from  the  date  in  which  it  was  signed  until  the 
present  day,  not  a  single  act  on  the  part  of  Costa  Eica  can  be 
found  which  may  show  the  slightest  doubt,  or  the  most  in- 
significant hesitation,  in  that  respect.  Much  to  the  contrary, 
all  its  acts  reveal  the  assurance  that  it  has  now,  and  has  had 
at  all  times,  of  the  firmness  and  validity  of  that  compact. 

Let  us  see  what  happened  in  1869,  and  why  the  treaty  of 


106 

1858  was  mentioned  in  the  Jimenez-Montealegre  project  of 
convention.  For  a  long  time  some  residents  of  San  Juan  del 
Norte,  both  foreigners  and  Nicaraguans,  had  been  engaged  on  a 
large  scale  in  the  rubber  trade,  an  article  which  is  found  in 
great  abundance  in  the  Costa  Kican  forests  adjoining  the 
San  Carlos,  Sarapiqui,  and  San  Juan  rivers. 

This  commerce,  which  was  carried  on  without  permission 
of  the  Government  of  Costa  Rica,  caused  the  colony  of  San 
Juan  for  several  years  to  be  flourishing.  Almost  the  whole 
of  it  was  engaged  in  this  trade.  And  there  were  some  years 
in  which,  as  acknowledged  by  the  official  organ  in  reference 
to  a  report  of  Don  L.  Urtecho,  the  Governor  of  San  Juan 
del  Norte,  the  exportation  of  rubber  amounted  to  the  sixth 
part  of  the  whole  exports  of  the  nation. 

Nicaragua  has  400,000  inhabitants ;  the  colony  of  San 
Juan,  according  to  that  paper,  had  only  736 ;  the  result  could 
not  but  be  astonishing. 

How  was  such  an  extraordinary  production  obtained  ?  The 
answer  is  very  simple :  by  stripping  the  forests  of  the  neigh- 
bor and  exhausting  at  once  the  sources  of  the  coveted  juice. 

The  Government  of  Costa  Rica,  then  presided  over  by  Lie. 
Don  Jesus  Jimenez,  could  not  consent  to  such  an  abuse,  and 
issued  the  decree  of  April  28,  1 869,  forbidding  the  exporta- 
tion, without  permission  of  the  Costa  Rican  authorities,  of 
the  natural  products  of  the  public  lands  of  Costa  Rica  situ- 
ated on  the  banks  of  the  San  Juan  river,  imposing  severe 
penalties  upon  the  violators  of  this  prohibition  and  establish- 
ing watch-houses  and  revenue  posts  at  the  place  of  the  con- 
fluence of  the  San  Carlos  and  Sarapiqui  rivers  with  the  San 
Juan. 

This  step,  which  was  perfectly  legitimate  on  the  part  of 
Costa  Rica,  because  it  legislated  only  upon  its  own  terri- 
tory, did  not  excite  any  protest  on  the  part  of  Nicaragua. 
Costa  Rica  made  use  of  its  right,  and  injured  no  one  by  do- 
ing so,  although  it  affected  thereby  the  principal  industry  of 
San  Juan  del  Norte.     Nicaragua  was  silent ;  she  had  before 


106 

her  eyes  the  treaty  of  1858,  and  that  treaty  forbade  her  to 
speak. 

To  protest  against  the  acts  of  the  Government  of  Costa 
Rica  and  infuse  new  life  into  the  extinguished  industry,  one 
thing  was  necessary,  and  that  was  the  disappearance  of  the 
treaty.  It  was  then,  when  for  the  first  time,  the  thought 
presented  itself  of  ignoring  it ;  and  the  deliberations  on  the 
subject  were  not  conducted  so  secretly  as  not  to  reach  the 
ears  of  the  Costa  Eican  Goyernment.  It  was  then  when  Don 
Mariano  Montealegre  came  to  San  Jose  as  Envoy  Extraor- 
dinary of  Nicaragua,  with  the  mission  of  securing  the  ad- 
herence of  Costa  Rica  to  the  Ayon-Chevalier  contract  of 
interoceanic  canal,  and  also  the  use  of  the  waters  of  the 
Colorado  river. 

These  negotiations,  entrusted  to  the  Nicaraguan  diplomatist, 
necessarily  presupposed  the  firmness  of  the  treaty  of  1858  ; 
and  upon  that  basis,  and  no  other,  the  convention  to  be  made 
ought  to  be  as  it  was  framed ;  so  it  is  clearly  shown  by  its 
language  from  the  first  to  the  last  word.  Sen  ores  Jimenez 
and  Montealegre  proceeded  with  frankness,  loyalty,  and  good 
faith,  and  agreed  with  each  other  to  smother  the  germ  of  a 
quarrel,  remote,  but  possible,  between  countries  called  for 
many  reasons  to  become  united,  which  might  lead  them  to 
disastrous  consequences.  On  the  part  of  Secretary  Jimenez 
there  was  no  doubt  or  hesitation  in  regard  to  the  validity  of 
the  treaty ;  but  as  the  possibility  of  a  contention  in  this  re- 
gard had  become  known,  it  was  sound  policy  to  cause  the 
Nicaraguan  Government  to  put  itself  on  record  with  an  ex- 
press declaration  in  this  regard.  That  is  what  was  done  in  the 
Jimenez-Montealegre  project  of  convention.  Sen  or  Monte- 
alegre, on  his  part,  abounded  in  the  same  feehngs  ;  and  the 
clause  was  drawn  up  in  the  way  it  reads.  Now,  forgetting 
the  facts,  it  is  attempted  to  be  turned  against  Costa  Rica. 

In  1869  Senor  Jimenez  might  have  been  thought  to  be  too 
suspicious;  but  the  facts  have  subsequently  come  to  prove 
that  his  lack  of  faith,  not  in  the  treaty  and  its  validity,  but 


107 

in  the  will  of  the  public  men  who  were  called  to  execute  it, 
was  unfortunately  well  founded. 

These  are  the  facts  such  as  they  happened  ;  and  it  is  there- 
fore untrue  that  Costa  Kica  did  ever  ask  Nicaragua  for  the 
ratification  of  the  treaty  of  limits,  as  if  it  were  an  imperfect 
and  unconcluded  convention. 


Chapter   X. 


THE    SECOND    ALLEGED    CAUSE    OF    NULLITY    OF    THE    TREATY    OF    LIMITS, 
WHICH    IS    THE    WANT    OF    RATIFICATION    BY    SALVADOR,    EXAMINED    IN 


GENERAL. 


The  first  alleged  cause  of  nullity  of  the  treaty  having  been 
examined  and  refuted  under  all  its  aspects,  I  shall  now  pass 
to  the  consideration  of  the  second. 

It  is  said  that  Article  IX  of  the  treaty  of  1858  stipulated 
that,  "  under  no  circumstances,  even  in  case  that  the  Kepub- 
lics  of  Costa  Eica  and  Nicaragua  should  unfortunately  find 
themselves  in  a  state  of  war,  it  shall  be  permitted  to  them 
to  wage  hostilities  against  each  other  either  at  the  port  of 
San  Juan  del  Norte,  or  the  San  Juan  river,  or  on  the  Lake 
of  Nicaragua."  It  has  been  said,  further,  that  Article  X  of 
the  said  treaty  stated  :  "  That  the  stipulation  of  the  forego- 
ing article,  being  of  essential  importance  to  the  proper  protec- 
tion of  the  port  and  river  against  a  foreign  aggression,  which 
would  affect  the  general  interests  of  the  country,  the  strict 
compliance  with  it  remains  under  the  special  guarantee,  which, 
in  the  name  of  the  Government  Mediator,  its  Minister  Pleni- 
potentiary is  disposed  to  give,  and  does  hereby  give,  by  vir- 
tue of  the  faculties  which  he  declares  to  have  been  conferred 
upon  him  for  that  purpose." 

Upon  these  two  clauses,  foreign  by  their  nature  to  the 
question  of  limits,  which  was  the  primordial  object  of  the 
treaty,  as  shown  by  its  own  title,  and  which  were  no  more 
than  an  appendix,  not  affecting  at  all,  nor  being  able  to  affect, 
the  subject-matter  of  the  principal  obligation,  the  Govern- 
ment of  Nicaragua  has  raised  the  following  argument : 

The  Government  of  Salvador  w^as  an  essential  contracting 
party  to  the  treaty,  and  the  lack  of  its  signature  destroys  the 
force  and  effect  of  the  compact. 


109 

The  guarantee  of  Salvador  was  not  only  a  condition  for  the 
validity  of  the  treaty,  but  a  condition  sine  qua  non. 

That  condition  being  clothed  with  the  character  of  suspen- 
sive, the  treaty  could  not  begin  to  be  operative,  even  after  its 
ratification  by  Nicaragua  and  Costa  Eica,  until  Salvador 
should  have  ratified  it. 

The  guarantee  and  the  ratification  having  failed,  the  whole 
structure  of  the  treaty  falls  to  the  ground  and  becomes  in- 
validated and  useless  in  every  respect. 

These  are  the  grounds  of  law  upon  which  the  second 
cause  of  nullity  has  been  founded.  To  them  there  has  been 
added  another  one,  moral  and  historical ;  that  is,  that  the 
treaty  was  obtained  by  violence  by  the  President  of  Costa 
Rica,  Don  Juan  Rafael  Mora,  who  compelled  Nicaragua  to 
give  away  all  that  he  was  pleased  to  demand ;  and  in  speak- 
ing of  the  treaty  it  is  referred  to  as  being  a  "  disastrous  mis- 
carriage brought  about  by  that  violence." 

It  is  sufficient  to  enunciate  these  reasonings  of  the  Nicar- 
aguan  statesman  and  historian,  Seiior  Ayon,  to  perceive,  at 
once,  that  they  were  due  exclusively  to  an  almost  inconceiv- 
able dialectic  effort,  so  artificial  and  strained  as  to  fall  of  its 
own  weakness. 

If  there  is  any  difficulty  in  answering  them,  it  is  not  cer- 
tainly on  account  of  their  incorrectness,  or  because  their 
faults  are  not  transparent;  but  on  account  of  their  own 
subtlety  and  rather  incoercible  nature.  It  is  always  difficult 
to  handle  what  lacks  substance. 

The  arguments  of  Senor  Ayon  rest  upon  a  lamentable  con- 
fusion of  facts  and  doctrines. 

The  statement  is  incorrect  that  the  Government  of  Salva- 
dor is  an  essential  contracting  party  to  the  treaty  of  limits, 
which  was  concluded  only  between  Costa  Rica  and  Nicaragua, 
and  in  which  the  Government  of  Salvador  was  primarily  a 
fraternal  mediator,  and  secondarily,  and  only  for  an  especial 
clause,  accessory  to  the  treaty,  which  was  Article  IX,  a  sec- 
ondary party  to  the  same,  as  guaranteeing  the  compliance 
with  the  special  stipulation  contained  in  that  article. 


110 

The  statement  is  incorrect  that  the  guarantee,  the  surety- 
ship, the  accessory  contract,  became,  by  a  strange  legal  evo- 
lution, the  subject-matter  of  the  compact,  and  converted  itself 
into  a  condition  suspensive  of  its  effects,  and  not  only  a 
simple  condition,  but  one  of  those  most  special  and  impor- 
tant ones  which,  in  law,  are  called  sine  qua  non  conditions. 

The  statement  is  incorrect  that  the  said  condition,  even 
taking  it  for  granted  that  it  was  stipulated,  can  ever  be  con- 
sidered to  be  suspensive. 

The  statement  is  incorrect,  in  fine,  that  the  want  of  ratifi- 
cation or  signature  by  the  Government  of  Salvador,  and  the 
consequent  want  of  the  guarantee,  may  legally  produce  the 
effect  of  annulling,  as  far  as  the  principal  contracting  parties 
are  concerned,  either  the  special  stipulation,  in  regard  to 
which  the  guarantee  was  offered,  or  the  agreement  about 
limits. 

Method  requires  that  each  one  of  these  points  should  be 
treated  separately.  But  as  the  charge  made  against  Costa 
Rica,  with  marked  injustice,  that  the  treaty  was  obtained  by 
violence,  is  very  grave,  I  must  be  permitted  to  begin  this 
portion  of  my  work  by  its  refutation. 


Chapter  XI. 

WHETHER  THE  TREATY  OF  1858  WAS  OR  WAS  NOT  THE  RESULT  OF 
VIOLENCE  USED  AGAINST  NICARAGUA  BY  THE  ADMINISTRATION  OF 
DON  JUAN  RAFAEL  MORA,  PRESIDENT  OF  COSTA  RICA. 

This  is  not  the  opportunity  to  recall  to  mind  the  action 
of  Costa  Eica  when  Nicaragua  saw  herself  conquered 
by  the  very  same  foreign  element  which  she  had  called 
to  her  country  to  mingle  in  their  domestic  troubles,  Costa 
Rica  was  the  first  to  raise  the  cry  of  war  against  the 
usurper  of  the  public  power  of  Nicaragua,  and  the  last  to 
retire  from  the  field  of  battle.  I  shall  not  enter  into  any  ex- 
planations of  this  kind,  even  in  face  of  the  provocation  of  the 
opponent,  and  of  the  recriminations  untenable  in  point  of 
justice,  made  by  Secretary  Ay  on,  as  already  remarked ;  and 
I  shall  confine  myself  to  showing  that  the  treaty  of  limits  of 
April  15,  1858,  was  not  a  disastrous  'miscarriage  brought 
about  by  any  violence  exercised  by  Costa  Rica  against 
Nicaragua,  her  sister,  but  the  result  of  peaceful  nego- 
tiations, initiated  by  Nicaragua  with  the  generous  mediation 
of  Salvador,  conducted  in  the  capital  of  Costa  Rica,  in  a  state 
of  full  and  perfect  peace,  and  sealed  in  Nicaragua  under  the 
auspices  of  the  most  cordial  friendship  and  good  understand- 
ing. Only  by  remembering  what  has  been  said  about  the 
outlet  of  the  Lake  of  Nicaragua,  or  Desaguadero,  it  can  be 
conceived  how  the  historian  of  that  country,  Senor  Ayon, 
blinded  by  the  most  vehement  passion,  has  been  able  to  state 
under  his  signature  a  fact  so  positively  at  variance  with  truth. 

To  prove  that  the  treaty  of  1858  was  the  result  of  violence, 
it  would  be  necessary  to  bring  evidence  that  the  Govern- 
ment of  Costa  Rica  at  the  time  of  the  negotiation  of  the  said 
treaty,  from  the  beginning  thereof  to  the  moment  of  the  ex- 
change of  ratifications,  or  at  least  during  some  part  of  that 


112 

time,  whether  a  day  or  an  hour,  had  caused  its  naval  or  land 
forces  to  go  to  Nicaragua,  or  stationed  them  on  the  frontiers, 
or  prepared  to  take  there  said  forces,  or  threatened  in  some 
way  the  ports  of  Nicaragua,  or  at  least  given  orders  to  raise 
said  forces  for  the  purpose  of  making  hostilities  against  that 
Kepublic. 

For  the  sake  of  clearness,  and  to  avoid  confusion  of  facts, 
dates,  places,  and  persons,  I  deem  it  necessary  to  fix  here 
the  date  which  was  the  starting-point  of  the  negotiations, 
and  the  date  in  which  the  negotiations  were  ended  by  the 
signing  of  the  act  of  exchange. 

The  first  date  was  the  15th  of  February,  1858,  a  date  on 
which  Col.  Negrete  presented  himself  to  the  Cabinet  of  San 
Jose  to  open  the  negotiation,  and  the  second  was  the  16th 
of  May,  1858,  the  day  on  which  the  exchange  of  the  ratifica- 
tions of  the  treaty  took  place. 

Long  before  the  former  of  these  dates,  the  peace  between 
Costa  Rica  and  Nicaragua  had  been  fully  re-established,  al- 
though the  question  of  limits  was  stiU  pending. 

The  proof  of  this  assertion  is  found  in  the  editorial  of  the 
Gaceta  de  Nicaragua,  No.  5,  of  January  30,  1858. 

Another  proof,  more  conclusive  still,  of  this  fact  will  be 
found  in  the  following  passage  of  the  speech  which  Mr. 
Mirabeau  B.  Lamar,  Minister  Plenipotentiary  and  Envoy 
Extraordinary  of  the  United  States  in  Nicaragua,  delivered 
on  the  day  of  his  official  reception  there,  on  February  8, 1858. 
It  reads  as  follows  : 

"  Allow  me  to  conclude  my  remarks  by  setting  forth  how 
gratifying  it  is  to  me  to  see  that  the  threatening  storm  of  war, 
which  a  short  time  ago  was  impending  between  this  nation 
and  one  of  her  neighboring  sisters  (Costa  Rica),  has  vanished 
before  the  serene  brilliancy  of  a  most  acceptable  policy  ;  that 
Nicaragua  and  Costa  Rica  have  put  an  end  to  their  conten- 
tions, and  that  everything  announces  the  prompt  re-establish- 
ment, founded  upon  substantial  basis,  of  their  ancient  rela- 
tions of  fraternal  concord.     Who  knows  what  may  come  out 


113 

of  such  a  happy  event  ?  It  may,  perhaps,  bring  with  it  the 
union  of  the  two  countries.  And,  indeed,  I  have  sometimes 
thought  that  such  a  policy  would  necessarily  be  conducive 
to  the  happiness  of  the  two  Republics.  In  my  opinion  this 
union  w^ould  be  an  example  worthy  to  be  followed  by  all  the 
other  States  of  Central  America,  the  reunion  of  which  under 
the  ancient  Federal  constitution  Avould  give  them  not  only 
peace,  strength,  and  dignity,  but  would  place  them  on  the 
same  level  with  other  important  nations,  enabling  them  to 
compete  with  the  most  enlightened  in  the  career  of  prosperity 
and  glory.  If  Nicaragua,  inspired  by  such  sentiments,  should 
take  the  first  step  for  the  realization  of  such  a  great  enter- 
prise she  will  crown  herself  with  immortal  glory  and  would 
deserve  the  gratitude  of  every  heart  which  throbs  for  the 
welfare  of  this  country  and  for  the  future  progress  of  its 
people." 

The  conferences  between  the  plenipotentiaries.  Gen.  Don 
Jos^  Maria  Canas  and  Don  Maximo  Jerez,  took  place  in  San 
Jose  in  Costa  Rica.  On  April  15,  1858,  the  treaty  was 
signed.  For  the  sake  of  solemnity,  and  for  the  purpose  of 
entering  into  another  treaty  of  friendship,  union,  and  alliance, 
which  was  happily  concluded.  President  Don  Juan  Rafael 
Mora  went  over  to  Rivas,  where  he  was  received  with  the 
most  perfect  cordiality  by  General  Martinez,  the  President  of 
Nicaragua.  There  the  exchange  of  the  ratification  took  place. 
Subsequently  to  all  this  President  Mora  took  leave  of  Presi- 
dent Martinez  in  the  friendly  terms  which  I  have  reported 
elsewhere.  And  then  it  was  said  by  the  official  Nicaraguan 
organ  that  the  hands  of  the  illustrious  Presidents  had  not 
been  grasped  in  vain  ;  that  the  promises  made  and  the  faith 
pledged  were  due  to  a  deep  conviction,  and  to  such  a  feeling 
as  has  seldom  been  seen  to  preside  over  treaties  among  na- 
tions, &c.,  &c. 

Where  is,  therefore,  the  violence  which  the  President  Don 
Juan  Rafael  Mora,  according  to  Seiior  Ayon,  made  against 
the  Republic  of  Nicaragua,  to  take  from  her  by  force  all  that 
he  deemed  advisable  to  demand  ? 
8 


114 

The  phrase  of  Senor  Ayon,  "  So  it  was  done,  and  the  treaty 
of  April  15, 1858,  was  the  disastrous  miscarriage  brought  about 
by  that  violence,"  will  never  have  force  enough  to  counteract 
that  other  phrase,  written  in  a  decree  of  the  Supreme  Power 
of  Nicaragua  dated  May  6,  1857,  which  reads  as  follows : 
"A  vote  of  thanks  is  granted  to  the  Republics  of  Costa  Rica, 
Guatemala,  Salvador,  and  Honduras  in  recognition  of  the 
gratitude  of  Nicaragua  for  the  services  that  those  nations 
have  rendered  her  as  true  friends  and  sisters." 

This  historical  point  having  been  rectified,  I  return  to  the 
principal  ones. 


Chapter  XII. 

THE    GOVERNMENT    OF    SALVADOR  WAS    NOT    AN  ESSENTIAL    PARTY    TO    THE 
TREATY   OF    LIMITS. 

That  the  Government  of  Salvador  was  not  a  principal  con- 
tracting party  to  the  treaty  of  limits  of  April  15,  1858,  is 
shown  by  the  mere  inspection  of  its  text.  It  is  enough  to 
read  its  preamble  to  become  convinced  of  this  fact,  and  to  re- 
ject at  once  as  sophistical,  violent,  and  badly  brought,  what- 
ever may  be  said  to  the  contrary. 

Here  are  the  words  with  which  it  was  set  forth  in  the  be- 
ginning of  the  instrument,  who  were  the  contracting  parties, 
what  were  the  object  and  purposes  of  the  treaty,  what  was 
the  reason  or  "  consideration  "  for  its  conclusion,  and  what 
determined  the  two  Governments  to  stipulate  what  they  did  : 

"  We,  Jos^  Maria  Canas,  Plenipotentiary  Minister  of  the  Ee- 
public  of  Costa  Rica,  and  Maximo  Jerez,  Plenipotentiary 
Minister  of  the  Republic  of  Nicaragua,  entrusted  by  our  re- 
spective Governments  with  the  duty  of  making  a  treaty  of 
limits  between  the  two  Republics,  which  should  set  at  rest 
the  differences  which  have  obstructed  that  best  and  most 
perfect  understanding  and  harmony  which  must  reign  be- 
tween them,  for  their  common  safety  and  prosperity  ;  having 
exchanged  our  respective  powers,  which  were  examined  by 
Hon.  Senor  Don  Pedro  R.  Negrete,  Minister  Plenipotentiary 
of  the  Government  of  the  Republic  of  Salvador,  exercising  the 
noble  functions  of  fraternal  mediator  in  these  negotiations, 
who  found  them  to  be  in  good  and  due  form,  in  the  same 
way  as  we  on  our  part  did  find  sufficient,  those  which  the 
same  Minister  exhibited  ;  after  discussing  with  the  necessary 
deliberation  the  points  to  be  settled,  with  the  assistance  and 
in  the  presence  of  the  representative  of  Salvador,  have  hereby 


116 

agreed  to  and  concluded  the  following  treaty  of  limits  be- 
tween Costa  Kica  and  Nicaragua." 

The  simple  reading  of  these  words  at  once  shows  that 
those  who  agreed  upon  and  celebrated  the  treaty  were  only 
the  diplomatic  representatives  of  Costa  Eica  and  Nicaragua  ; 
that  the  diplomatic  representative  of  Salvador  did  no  more 
than  attending  and  proceeding  as  fraternal  mediator,  exer- 
cising his  good  offices,  examining  the  powers  given  to  the 
negotiator,  assisting  the  one  and  the  other  with  his  friendly 
and  disinterested  advice,  and  endeavoring  to  smother  among 
them  whatever  germ  of  dispute  might  occur  and  endanger 
the  peaceful  relations  of  the  two  countries. 

Nowhere  does  the  treaty  read  that  Salvador  was  one  of  the 
parties  concurring  to  its  formation.  Nor  could  it  read  in 
this  way,  because  the  nature  itself  of  the  compact  forbade  it 
imperatively.  If  the  subject  to  be  disposed  of  was  the  di- 
viding line  between  Costa  Rica  and  Nicaragua,  and  not  be- 
tween Costa  Rica  and  Salvador,  nor  between  Salvador  and 
Nicaragua,  the  intervention  of  Salvador  in  the  treaty  w^hich 
would  mark  that  line  could  not  be  even  practicable.  De  re 
til  a  nan  agitur  Salvador  might  have  been  told  in  reply  to 
such  an  attempt  on  her  part.  And  certainly  that  Republic 
would  not  have  by  any  means  attempted  to  force  herself  as  a 
contracting  party  into  a  compact  which  did  not  concern  her. 

There  is  no  doubt,  nor  can  any  be  raised,  about  the  fact 
whether  the  treaty  does  or  does  not  say  that  the  two  con- 
tracting parties  to  it  are  Costa  Rica  and  Nicaragua,  and  no 
one  else.  And  when  a  thing  is  not  expressed  by  words,  there 
is  at  once  the  primu  facie  proof  that  it  did  not  enter  into  the 
mind  of  the  contracting  parties.  But  if,  through  collateral 
argument,  and  through  more  or  less  strained  interpretation, 
an  attempt  is  made  to  read  what  is  not  written  in  the  instru- 
ment, then  it  will  be  necessary  to  turn  the  eyes  to  the  com- 
mon law  and  look  there  in  the  light  of  its  principles  for  the 
solution  of  the  difficulty. 

In  his  standard  work  on  Contracts,  Parsons  said  that  the 


117 

circumstances  of  each  case  and  the  situation  and  relation  of 
the  parties  must  be  examined  and  taken  into  account  for  the 
purpose  of  determining  who  is  really  interested,  or,  in  other 
words,  who  are  parties  to  the  transaction.  "  The  nature,  and 
especially  the  entireness  of  the  consideration,"  says  the  same 
writer  elsewhere,  "  is  of  great  importance  to  determine  the 
nature  of  the  obligation."  ^ 

What  were  the  circumstances  which  surrounded  the  treaty 
herein  referred  to,  what  the  situation  or  relation  of  the  par- 
ties thereto,  what  the  nature  and  entireness  of  the  consider- 
ation which  led  to  the  adjustment  and  ratification  of  the 
compact  ? 

Article  I  of  the  treaty  explains  all  of  this  satisfactorily : 

"  The  Kepublic  of  Costa  Rica  and  the  Republic  of  Nic- 
aragua (that  of  Salvador  is  not  mentioned)  do  hereby  declare 
in  the  most  express  and  solemn  terms,"  so  says  Article  I, 
"that  if  for  one  moment  they  felt  disposed  to  combat  each 
other  for  differences  about  Hmits  and  for  other  reasons,  which 
each  one  of  the  high  contracting  parties  (Costa  Rica  and 
Nicaragua,  not  Salvador)  considered  to  be  legal  and  a  mat- 
ter of  honor ;  now,  after  repeated  proofs  of  good  under- 
standing, of  peaceful  principles  and  of  true  fraternity,  are 
willing  to  bind  themselves,  as  they  hereby  formally  do  (Costa 
Rica  and  Nicaragua,  not  Salvador),  to  secure  that  the  peace, 
happily  re-established,  should  be  strengthened  each  day 
more  and  more  between  the  Government  and  the  people  of 
the  two  nations  (the  nations  and  Governments  before  indi- 
cated), not  only  for  the  good  and  profit  of  Costa  Rica  and 
Nicaragua,  but  for  the  happiness  and  prosperity,  which,  in  a 
certain  way  (in  an  indirect  or  incidental  way)  redounds  in 
favor  of  our  sisters,  the  other  Republics  of  Central  America." 

All  of  this  is  clear  and  admits  of  no  misinterpretation  or 
dispute.  The  two  Republics  of  Costa  Rica  and  Nicaragua  were 
the  ones  which  saw  themselves  profoundly  divided  by  dif- 


^  Parsons  on  Contracts,  Book  1,  chapter  ii,  §  1. 


118 

ferent  opinions  in  regard  to  their  respective  limits,  and  to  the 
sovereignty  stubbornly  claimed  by  each  one  of  them  over 
certain  determined  territories.  Both  Republics  were  the 
ones  which  were  about  to  wage  war  against  each  other  and 
subsequently  gave  themselves  mutual  proofs  of  good  under- 
standing, fraternity,  and  peaceful  principles.  Both,  also, 
were  the  ones  who  wanted  formally  to  put  an  end  to  those 
questions  and  settle  those  disputes  by  means  of  a  treaty 
which  they  concluded,  ratified,  exchanged,  promulgated  and 
carried  out. 

Who  doubts,  then,  that  if  Salvador  intervened  in  all  of  this, 
she  did  not  do  so,  nor  could  she  have  done  so,  as  an  inter- 
ested party,  or  in  the  capacity  of  a  contracting  party  to  the 
treaty,  but  simply,  as  it  was  the  fact,  as  a  fraternal  mediator, 
a  moderator  of  the  discussion  ? 

All  the  articles  of  the  treaty,  from  the  1st  to  the  IXth,  in- 
clusive, refer  to  nothing  else  than  the  question  of  limits,  and 
the  rights  and  duties  of  the  two  Republics  of  Costa  Rica  and 
Nicaragua,  either  over  what  was  declared  by  them  to  belong 
exclusively  to  each  country,  or  over  what  was  stipulated  that 
should  be  of  common  jurisdiction. 

Could  it  be  doubted,  in  view  of  all  this,  and  in  the  absence 
of  all  mention  that  the  Republic  of  Salvador  was  a  party  to 
the  treaty,  and,  what  is  more,  in  the  absence  of  all  reason  to 
mention  her  as  such,  that  the  said  Republic  had  no  interest 
in  the  matter,  nor  was  an  essential  party  to  the  treaty  ? 

If  the  remote  and  eventual  interest  which  is  mentioned  at 
the  end  of  Article  X  should  give  Salvador  the  character  of 
contracting  party  to  the  treaty,  the  same  thing  could  pre- 
cisely be  said  of  Guatemala  and  Honduras,  which  are  also 
sister  Republics  of  Central  America,  and  to  which  also,  in  a 
certain  way,  the  non-disturbance  of  the  peace  on  that  soil 
proved  beneficial.  But  this  claim  would  be  so  absurd  in 
itself  that  it  has  not  occurred  to  any  one  nor  admits  of  de- 
fence. 

The  conclusion  to  be  reached  from  the  silence  of  the  treaty 


119 

in  its  nine  fundamental  articles — articles  which  dispose  of 
all  the  questions  pending,  and  give  to  them  solution  satis- 
factory to  the  two  contracting  parties — confirmed  and  cor- 
roborated by  the  study  of  its  text,  its  history,  and  its  circum- 
stances, by  the  examination  of  the  causes  which  induced  its 
adjustment,  and  of  the  object  which  it  had  in  view,  the  in- 
terests and  advantages  which  it  ought  to  produce,  and  in 
whose  favor,  clearly  points  out  the  answer  to  be  given  to  this 
question,  and  is  as  follows  :  The  Eepublic  of  Salvador  was 
not  one  of  the  high  contracting  parties  to  the  treaty  of  limits 
between  Costa  Rica  and  Nicaragua  concluded  April  15, 1858. 
Therefore,  the  want  of  the  signature  of  Salvador  in  that  treaty 
does  not  affect  in  the  least  the  validity  of  the  compact. 


Chapter   XIII. 

THE  GOVERNMENT  OF  SALVADOR  WAS  PRIMARILY  A  FRATERNAL  MEDIATOR, 
AND  SUBSEQUENTLY,  AND  IN  REGARD  TO  ONLY  ONE  SECONDARY  CLAUSE 
OF  THE  TREATY,  GUARANTEEING  PARTY  OF  THE  EXECUTION  OF  THE 
SAID  CLAUSE. 

It  has  been  said  by  the  Government  of  Nicaragua  that  the 
Bepublic  of   Salvador,  by  virtue  of   the  special  guarantee 
spoken  of  in  Article  X  of  the  treaty,  became  one  of  the  con-- 
tracting  parties. 

It  is  extremely  singular  that  such  an  important  matter  as 
the  determination  of  the  question,  who  are  the  essential  par- 
ties to  a  contract  of  any  kind,  and  especially  to  an  interna- 
tional agreement,  should  depend  upon  arbitrary  interpreta- 
tions, under  which  what  is  collateral  and  accessory  changes 
its  nature  and  converts  itself  into  primary  and  principal,  in 
all  and  for  all. 

Article  X  of  the  treaty  says  : 

"  The  stipulation  of  the  foregoing  article  (the  one  by  which 
the  two  Republics  bind  themselves  not  to  commit  hostilities 
against  each  other  on  the  Lake,  or  in  the  San  Juan  river,  or 
in  the  port  of  San  Juan,  even  in  case  of  war)  being  essentially 
important  for  the  security  of  the  port  and  river  against  for- 
eign aggression,  which  would  affect  the  general  interest  of  the 
country,  the  strict  compliance  therewith  remains  under  the 
special  guarantee  which,  in  the  name  of  the  Government 
mediator,  its  Minister  Plenipotentiary  present,  is  ready  to  give, 
and  does  hereby  give,  by  virtue  of  the  faculties  which  he  de- 
clares to  have  been  vested  in  him  for  that  purpose." 

Neither  the  words  of  this  article  nor  its  spirit  authorize  the 
presumption  of  Nicaragua  that  the  Government  of  Salvador 
became  through  it  one  of  the  principal  contracting  parties. 

I  need  not  enumerate  particularly  the  acts  and  ofl&ces  of 


121 

the  Government  of  Salvador,  in  relation  to  this  treaty,  to 
cause  the  true  and  only  character  of  its  intervention  to  be 
established  in  a  clear  and  uncontrovertible  manner. 

That  Salvador  acted  only  in  the  capacity  of  a  generous  and 
amicable  mediator  is  revealed  clearly,  and  without  any  effort, 
by  the  words  of  the  preamble  which  were  copied  in  the  be- 
ginning of  this  part  of  my  argument. 

The  diplomatic  representative  of  Salvador  intervened  in 
the  matter,  and  acted  in  it,  as  the  preamble  says,  not  as  a 
party  to  the  transaction,  but  "in  the  exercise  of  the  noble 
functions  of  fraternal  mediator  in  the  negotiations." 

And  it  was  in  that  capacity,  and  in  no  other,  as  stated  by 
his  credentials,  that  the  above  said  high  officer  constantly 
acted.  So  he  himself  said  to  the  two  Governments,  both  on 
his  arrival  at  Managua  and  San  Jos^,  and  in  all  his  subse- 
quent steps. 

It  was  in  that  capacity  that  the  two  contracting  Republics 
admitted  him. 

It  was,  in  fine,  in  that  capacity  that  the  two  Governments 
recognized  him  when  the  moment  of  the  exchange  of  the 
ratification  arrived. 

The  act  additional  to  the  treaty  of  1858  is,  perhaps,  the 
document  which  best  establishes  and  determines  the  true 
position,  the  principal  and  only  character  of  the  Govern- 
ment of  Salvador,  in  the  negotiations  between  Costa  Rica 
and  Nicaragua  and  in  the  treaty  of  limits  by  which  they  cul- 
minated. 

Here  is  that  remarkable  document : 

"  Additional  Act. 

"  The  undersigned.  Ministers  of  Nicaragua  and  Costa  Rica, 
wishing  to  give  public  testimony  of  their  high  esteem,  and  of 
their  feelings  of  gratitude  towards  the  Republic  of  Salvador 
and  its  worthy  representative.  Col.  Don  Pedro  R.  Negrete, 
do  hereby  agree  that  the  treaty  of  territorial  limits  be  ac- 
companied with  the  following  solemn  declaration : 


122 

*'  The  Government  of  Salvador  having  given  to  the  Govern- 
ments of  Costa  Rica  and  Nicaragua  the  most  authentic  proof 
of  its  noble  sentiments  and  of  its  appreciation  in  all  its  value 
of  the  necessity  of  cultivating  fraternal  sympathy  among  all 
these  RepubUcs  by  interesting  itself  as  efficiently  and  friendly 
in  the  equitable  settlement  of  differences  which  have  unhap- 
pily existed  between  the  high  contracting  parties,  and  ob- 
tained this  happy  result  through  the  Legation  of  both 
parties,  owing  in  great  part  to  the  estimable  and  active 
offices  of  the  Hon.  Senor  Negrete,  Minister  Plenipotentiary 
of  that  Government,  who  proved  to  be  the  right  person  to 
carry  on  its  generous  mediation,  and  has  known  perfectly 
well  how  to  correspond  to  its  intentions  ;  and  owing,  also,  to 
the  important  assistance  which  the  learning  and  impartiality 
of  the  said  Minister  have  enabled  him  to  render  in  the  dis- 
cussion of  all  the  matters  concerning  the  subject,  we,  the  heads 
of  the  Legations  of  Costa  Rica  and  Nicaragua,  in  the  name 
of  our  respective  Governments,  do  hereby  comply  with  the 
gratifying  duty  of  declaring  and  recording  here  all  the  grati- 
tude which  the  patriotism,  learning,  spirit  of  fraternity  and  be- 
nevolence characterizing  the  Government  of  Salvador  justly 
deserve  from  them. 

"  In  testimony  whereof  we  have  hereunto  signed  our  names 
to  the  present  instrument,  which  has  been  done  in  triplicate, 
in  the  presence  of  the  Hon.  Minister  of  Salvador,  counter- 
signed by  the  respective  Secretaries  of  Legation  in  the  city 
of  San  Jose,  the  capital  of  Costa  Rica,  on  the  15th  day  of 
the  month  of  April,  in  the  year  of  our  Lord,  1858. 

"  MAXIMO  JEREZ. 

"JOSE  MARIA  CA:5TAS. 

"  MANUEL  RIVAS, 
"  Secretary  of  the  Legation  of  Nicaragua. 

"  SALVADOR  GONZALEZ, 
"  Secretary  of  the  Legation  of  Costa  Rica^ 

The  Government  of  Salvador  was  therefore  a  fraternal 
mediator,  and  nothing  else. 


123 

I  do  not  think  it  necessary  to  increase  the  volume  of  this 
argument  by  bringing  authorities  to  prove  what  is  by  itself 
evident ;  that  is,  that  the  amicable  mediator  who  intervenes 
between  two  parties,  purely  for  the  sake  of  humanity  and 
mere  generosity,  without  having  any  interest  personal  and 
direct  in  the  matter,  and  without  what  is  called  in  law  con- 
sideration, cannot  under  any  circumstances  whatsoever  convert 
himself  by  some  kind  of  mysterious  evolution  into  principal 
party  to  the  case,  into  contracting  party,  and  find  himself, 
whether  willingly  or  forcibly,  for  all  the  purposes  of  the  com- 
pact, in  the  legal  relation  of  one  contracting  party  to  another. 

To  attribute  to  Senor  Negrete  and  to  Salvador  a  real  and 
direct  interest  in  the  treaty  would  be  to  ignore  the  nobleness 
and  generosity  of  their  action.  It  would  be  more  than  that ; 
it  would  be  to  be  ungrateful. 

It  is  therefore  unquestionable  that  the  primary  part  of  the 
Salvador  Government,  in  regard  to  this  treaty,  was  the  part 
of  a  friendly  mediator,  and  nothing  else. 

But  it  is  claimed  that  the  Government  of  Salvador,  through 
the  instrumentality  of  its  minister,  bound  itself  to  guarantee 
the  exact  compliance  with  Article  IX  of  the  treaty.  But 
this  fact,  although  true,  did  not  place  Salvador  in  the  position 
of  principal  party  to  the  contract.  Its  having  offered  a 
guarantee  to  one  of  the  stipulations  specifically  designated 
only  placed  that  Government  in  the  situation  of  a  secondary 
or  accessory  party,  exactly  in  the  same  condition  as  belongs 
in  a  common  contract  to  the  surety  or  guarantor  who  comes 
and  guarantees  the  fulfilment  of  an  obligation  contracted  by 
two  private  parties  whatsoever. 

The  guarantee  in  international  law  and  the  suretyship  in 
private  municipal  law  are  the  same  thing,  and,  according  to 
their  own  nature,  neither  of  them  can  never  be  more  than  an 
accessory  contract. 

"A  guarantor,"  says  Carlos  Calvo,^  "is  the  one  who  re- 


Dictionuaire  de  Droit  International. 


124 

sponds  either  for  his  own  act  or  for  the  act  of  another ;  the 
one  who  becomes  surety  for  the  obligation  of  another." 

"  Guarantee  is  the  engagement  contracted  by  the  guaran- 
tor, and,  in  legal  language,  it  is  an  accessory  obligation  des- 
tined to  secure  the  execution  of  the  principal  obligation.'' 

"  Sometimes  a  third  party  becomes  surety  for  the  faithful 
compliance  with  a  treaty." 

Tribune  Chavot,  at  the  meeting  of  the  21st  Pluviose  of  the 
12th  year  of  the  French  Eepublic,  when  the  Code  Napoleon 
was  under  discussion,  expressed  himself  as  follows  : 

"  Suretyship  is  but  an  accessory  of  the  principal  obliga- 
tion."! 

Treilhard,  Counsellor  of  State,  at  the  meeting  on  the  fol- 
lowing day,  said  : 

"  Suretyship  is  a  thing  accessory  to  the  principal  obliga- 
tion. *  ^  ^  I  have  said  that  suretyship  is  something 
accessory  to  an  obligation,  and  it  cannot,  therefore,  exceed 
it.  It  would  be  contrary  to  the  nature  of  things  that  what  is 
accessory  could  exceed  what  is  principal." 

In  accordance  with  this  principle,  Dalloz,  the  great  inter- 
preter of  the  French  law,  in  the  word  Cautionnement  (No. 
928  of  his  standard  work,  Eepertoire  de  la  Legislation  et  de 
la  Jurisprudence),  says  as  follows  : 

"  The  extinction  of  the  principal  obligation  carries  with  it 
the  extinction  of  the  suretyship,  because  the  accessory  can- 
not exist  without  the  principal.  The  reverse  does  not,  how- 
ever, happen.  The  surety sliip  can  cease  to  exist  without  the 
principal  obligation  losing  its  forced 

This  doctrine  is  universal,  and  there  is  no  human  legisla- 
tion which  does  not  admit  of  it.  It  has  been  recognized  and 
proclaimed  since  before  the  days  of  the  great  Roman  jurists, 
whose  immortal  works  have  been  the  basis  of  the  modern 
codes.  And  it  is  so  universal  as  to  constitute  one  of  the 
most  elementary  principles  of  law. 


Dalloz.     Repertoire^  word  "  CautioHnement.' 


125 

The  guarantee  may  disappear  without  affecting  in  the 
least  the  principal  obligation.  The  force,  validity,  firmness 
of  the  latter  does  not  depend  at  all  upon  the  validity  and 
firmness  of  the  former. 

If  there  are  cases  of  exception  to  that  principle  they  are 
rare  and  special  ;  for  instance,  when  the  guarantee  has  been 
made  expressly  an  indispensable  condition  for  the  subsist- 
ence of  the  contract.  In  this  case,  if  the  guarantee  fails 
the  whole  compact  also  fails,  because  such  was  the  express 
will  of  the  parties ;  but  in  the  case  of  the  treaty  herein  re- 
ferred to  there  is  no  occasion  to  think  of  that  exception, 
and  the  general  rule  must  be  observed. 

And  as  the  question  under  consideration  is,  above  all,  a 
question  of  common  sense,  rather  than  quoting  from  authors 
and  legal  works  I  want  to  refer  in  support  of  my  assertion 
to  a  fact  of  daily  occurrence. 

Titius  lends  to  Sempronius  one  thousand  dollars  under  the 
guarantee  of  Cajus.  Cajus  may  fail  and  not  pay.  He  may 
argue  that  the  instrument  witnessing  the  obligation  is  false. 
He  may  plead  error,  violence,  fraud,  minority,  <fec.,  &c.  He 
may,  in  a  thousand  different  ways,  evade  the  fulfilment  of  the 
guarantee.  But  no  matter  what  he  does,  Sempronius  will 
always  be  indebted  to  Titius  in  the  sum  that  the  latter  lent 
him,  and  it  will  never  be  lawful  for  him  to  evade  the  fulfil- 
ment of  his  obligation  by  alleging  that  the  guarantee  failed. 

This  is  precisely  the  present  case.  Costa  Rica  and  Nic- 
aragua bound  themselves  by  a  treaty,  and  Salvador  offered  its 
guarantee  but  did  not  give  it.  There  is  no  guarantee.  But 
the  obligations  of  Costa  Rica  and  Nicaragua  remain  firm  and 
unreleased.  No  one  of  the  two  parties  can  rightly  refuse  to 
comply  with  the  compact  under  the  pretext  that  there  is  no 
surety  to  respond  for  it. 

The  guarantee  offered  by  Salvador  was  in  truth  such  a  sec- 
ondary thing  that  the  contracting  parties  did  not  wait  for  it 
for  the  purpose  of  carrying  the  agreement  into  effect.  Dur- 
ing the  time  in  which  it  could  or  should  have  been  given,  no 


126 

one  of  the  two  parties  did  anything  to  obtain  it,  and  when 
the  time  passed  neither  of  them  entered  the  slightest  protest. 
The  treaty  continued  in  observance  for  many  years  after- 
wards. 

It  was  because  the  two  high  contracting  parties  acted  in 
good  faith  and  with  the  true  intention  of  doing  honor  to  their 
signature.  The  guarantee  was  not  considered  to  be  neces- 
sary. The  Government  of  Salvador  so  also  understood  it  as 
Senor  Ayon  himself  says  in  his  "  Considerations  : " 

"  But  neither  the  Government,  nor  the  Congress  of  that 
Republic  (Salvador),  approved  of  or  ratified  the  stipulation, 
and  it  may  be  depended  upon  that  neither  the  Legislatures 
nor  the  Cabinets,  nor  even  the  people  of  Salvador,  ever  re- 
membered it  again."  1 

The  same  thing  happened  in  Nicaragua.  Her  successive 
Executives,  Chambers,  diplomatic  ministers,  tribunals,  always 
complied  faithfully  with  the  compact,  without  thinking  that 
there  was  a  surety  who  might  compel  Nicaragua  to  comply 
with  the  duties  which  the  treaty  imposed  upon  her,  or  respond 
for  Costa  Rica. 

The  discovery  was  made  by  Don  Tomas  Ayon,  and  this 
not  in  the  beginning  of  the  diplomatic  contention  initiated  by 
him  against  the  treaty,  but  very  long  afterwards,  when  he 
was  hunting  for  faults  in  the  treaty  and  its  articles,  and 
when  in  each  one  of  its  requisites  he  imagined  to  find  a 
a  cause  of  nullity. 


^  Considcraciones  sobre  la  cuestion  de  limites  territoriales,  entre  las  Re- 
publicas  de  Nicaragua  y  Costa  Rica.  Managua,  1872.  Imprenta  de  *'E1 
Centro  Americano." 


Chapter  XIV. 

THE  GUARANTEE  CANNOT  BE  CONSTRUED  AS  A  CONDITION  OF  THE  TREATY. 

One  of  the  best  known  principles  of  law  is  that  conditions 
are  not  presumed.  Therefore,  in  order  to  consider  that  a 
condition  has  been  established,  one  of  the  two  following  cir- 
cumstances is  required  : 

Either  that  the  text  of  the  instrument  witnessing  the  obli- 
gation clearly  and  explicitly  says  so,  or  that  it  is  to  be  con- 
cluded, logically  and  necessarily  from  the  spirit  thereof,  as 
the  common  and  manifest  will  of  both  parties. 

That  in  the  present  case  no  express  condition  exists  is  a 
matter  of  self-evidence,  and  needs  no  discussion. 

The  problem  is  to  decide  whether  the  condition  exists  by 
implication. 

"  Condition,"  says  Pothier,^  "  is  the  case  of  a  future  and 
uncertain  event,  which  may  or  may  not  happen,  and  on  which 
the  obligation  has  been  made  to  depend." 

Dalloz^  says  :  "  An  obligation  is  conditional  when  it  is 
made  to  depend  upon  a  future  and  uncertain  event,  either  by 
suspending  it  until  the  event  happens,  or  affirming  or  rescind- 
ing it  according  to  the  happening  or  non-happening  of  the 
event," 

"  In  the  former  case  what  depends  upon  the  event  is  the 
existence  of  the  obligation  ;  but  in  the  latter  it  is  its  efficiency. 
Condition  is,  therefore,  a  future  and  uncertain  event  upon 
which  the  legal  bond  constituting  the  obligation  is  made  to 
depend ;  or,  rather,  it  is  a  kind  of  restriction  attached  to  the 
existence  of  a  legal  relationship  in  connection  with  a  future 
and  uncertain  event." 


^Oblig.,  No.  218-232. 

""  Repertoire,  Art.  Obligation,  No.  1099. 


128 

This  is  also  the  opinion  of  Savigny.i 

Examples :  I  make  you  a  present  of  a  house,  provided 
that  I  draw  the  large  prize  in  the  next  lottery ;  but  the  present 
will  not  be  valid  if  within  a  year  I  receive  new  information 
about  my  son. 

In  the  first  part  of  the  promise  a  future  and  uncertain 
event  is  established  as  a  legal  restriction  upon  the  subsistence 
of  the  obligation  ;  but  in  the  second  part  another  fact,  also 
future  and  uncertain,  is  established  as  being  the  cause  of  the 
complete  nullification  of  the  contract. 

The  first  condition  is  "  suspensive,"  the  second  "  reso- 
lutive." 

Where,  and  when,  or  how,  does  Article  X  of  the  treaty  of 
limits  say  that  the  effects  of  the  agreement  witnessed  by  it 
are  to  be  suspended  until  the  Government  of  Salvador  gives 
the  guarantee  spoken  of  by  it ;  or  that  the  whole  compact  is 
to  be  nullified  if  such  a  guarantee  fails  to  be  given  ?  No 
such  a  thing  is  said  anywhere  in  the  instrument.  Nor  how 
could  it  be  said  if  even  the  article  referred  to  does  not  require 
from  the  contracting  parties  themselves  to  guarantee  each 
other  the  fulfilment  of  that  special  obligation ;  and  when  it 
plainly  appears  that  the  act  of  Salvador  was  one  of  mere 
liberality,  neither  asked  nor  demanded  by  either  one  of  the 
contracting  parties,  and  consisted  only  of  a  spontaneous  and 
officious  promise  of  assuming  the  duties  of  surety,  which  in 
the  end  was  left  undone  ? 

All  the  circumstances,  both  preceding,  simultaneous,  and 
subsequent  of  the  treaty  of  limits,  combine  together  to 
show  that  the  idea  of  rendering  the  guarantee  of  the  Gov- 
ernment of  Salvador  a  condition  for  the  validity  of  the  treaty, 
and  much  less  a  sine  qua  non  condition,  never  entered  the 
minds  of  the  high  contracting  parties. 

In  the  first  place,  the  guarantee  did  not  refer  to  all  the 
clauses  and  stipulations  of  the  treaty,  or  to  a  considerable 


•  Droit  Romain,  Vol.  3,  p.  126. 


129 

portion  of  them,  or  even  to  any  of  the  essential  portions  of 
the  same,  but  confined  itself  to  only  one  point,  to  a  certain 
extent  foreign  to  the  question  of  limits,  which  was  the  sub- 
ject-matter of  the  treaty — a  clause  indeed  which  might  have 
found  a  better  place  in  a  treaty  of  peace  and  amity  between 
the  two  nations. 

If  the  guarantee  of  Salvador  would  have  referred  to  all 
the  different  stipulations  of  the  treaty,  or  if  at  least  the  Min- 
ister of  Salvador  would  have  said  that  his  Government 
guaranteed  the  stability  of  the  frontiers  such  as  marked  out 
by  the  treaty,  the  pretension  of  the  Government  of  Nicara- 
gua that  the  guarantee  implied  a  condition,  without  ceasing 
from  being  groundless,  would  seem,  however,  somewhat  more 
tenable. 

How  can  it  be  concluded  that  the  instrument  is  in  such  a 
manner  indivisible  that  if  the  accessory  clause,  which  is  the 
guarantee  given  in  regard  to  a  point  also  accessory.  Clause 
IX,  should  fail,  the  whole  of  the  compact  also  falls  to  the 
ground  ? 

The  principal  stipulations  of  the  agreement  could  certainly 
exist  without  needing  the  guarantee  at  all,  and  to  such  an 
extent  this  was  true  that  the  latter  was  not  extended  to  them 
by  the  will  and  declaration  of  the  contracting  parties. 

Had  they  thought  otherwise,  either  none  of  the  clauses 
would  have  failed  to  be  guaranteed  or  the  treaty  would  never 
have  been  carried  into  effect. 

The  indivisibility  now  claimed,  far  from  being  written  in 
the  text  of  the  treaty,  is  plainly  contradicted  by  it. 

Of  such  small  practical  importance  was  and  is  really  the 
guarantee  herein  referred  to,  that  the  Government  of  Nic- 
aragua, as  remarked  before,  did  not  think  of  it  any  more, 
and  carried  into  execution  the  treaty  as  far  as  Nicaragua  was 
concerned,  and  demanded  from  Costa  Kica  the  full  and  faith- 
ful execution  of  the  same  whenever  deemed  advisable. 

Should  the  omission  of  the  guarantee  have  had  the  tran- 
scendental importance  now  claimed  for  it,  it  was  natural 
9 


130 

that,  during  the  14  years  elapsed  between  the  signing  of  the 
treaty  and  the  date  in  which,  under  the  circumstances  above 
explained,  Secretary  Ayon  set  forth  before  the  Nicaraguan 
Congress  the  doubts  which  he  is  said  to  have  entertained 
about  the  validity  of  the  convention,  some  one  of  the  Gov- 
ernments which  Nicaragua  had  had  in  that  time  would  have 
said  at  least  one  word  to  the  effect  of  demanding  that  the 
guarantee  should  be  carried  out. 

It  can  be  understood  how  little  importance  was  attached 
by  Nicaragua  to  the  omission  of  the  guarantee  offered  by 
Salvador,  by  considering  that  when  Secretary  Ayon  submit- 
ted to  the  Chambers  his  alleged  doubts,  he  grounded  his 
theory  that  the  treaty  was  invalid,  on  the  want  of  a  second 
legislative  ratification,  and  also  on  the  supposed  acknowledg- 
ment by  the  Secretary  Don  Agapito  Jimenez  that  it  was  not 
firm  ;  but  he  said  nothing  about  the  lack  of  the  guarantee  of 
Salvador. 

It  would  have  been  surprising  for  Senor  Ayon  to  have  for- 
gotten, under  such  circumstances  as  those  then  existing,  this 
ground  of  nullity.  Its  omission  shows  the  little  importance 
that  it  had  in  the  eyes  of  the  Government  of  Nicaragua  itself. 
0  This  argument  did  not  come  to  the  mind  of  Senor  Ayon 
until  a  long  time  afterwards ;  and  as  from  the  text  of  Article  X 
of  the  treaty  no  possible  inference  can  be  drawn,  even  under 
the  most  strained  and  violent  construction,  that  it  contains 
a  condition,  whether  suspensive  or  resolutive,  Senor  Ayon 
attempted  to  derive  the  said  condition  from  other  sources  and 
by  way  of  implication. 

He  resorted  for  that  purpose  to  the  legal  doctrine  and  well 
known  general  principle  that  in  the  bilateral  contracts  the 
obligation  of  one  of  the  parties  is  subject  or  subservient  to 
the  fact  of  the  other  party  complying  with  its  own  obliga- 
tions, and  that,  for  instance,  the  seller  of  an  article  is  bound 
to  deliver  it  when  the  purchaser  pays  him  the  price,  and  that 
reciprocally  the  purchaser  should  pay  the  price  before  he 
becomes  entitled  to  receive  the  article.      But  this  doctrine 


131 

has  not,  nor  can  it  have,  practical  application  to  the  pi'esent 
case. 

Before  invoking  this  doctrine  against  Costa  Rica  as  a  cause 
of  nullity  of  the  contract,  it  would  be  necessary  to  prove 
that  Costa  Rica  ever  failed  to  comply  with  the  obligations 
contracted  by  it.  And  neither  has  this  charge  ever  been 
made,  nor  can  it  be,  since  it  has  been  an  invariable  principle 
of  its  politics  to  keep  always  faithfully  its  international  en- 
gagements. And  as  Costa  Rica  never  failed  on  its  part  to 
execute  the  treaty,  Nicaragua  cannot  consider  herself  released 
from  the  obligations  of  the  same. 

Secretary  Ay  on  says  that  Costa  Rica  bound  herself  to  give . 
the  guarantee  or  suretyship  of  Salvador  for  the  purpose  of 
securing  the  faithful  execution  of  Article  IX  of  the  treaty. 
Where  is  that  written  in  the  treaty  ?  What  it  says  is,  that 
Salvador  guarantees  alone,  and  neither  of  the  contracting 
parties  gives  the  guarantee  referred'  to. 

And  if  the  language  of  Article  X  is  so  forcibly  strained  as 
to  make  it  read  (what  it  does  not)  that  the  two  Republics 
bound  themselves  to  guarantee  each  other  the  faithful  exe- 
cution of  that  clause,  the  result  would  be,  in  good  logic,  that 
the  fault  is  not  of  Costa  Rica  alone,  but  of  both  Nicaragua 
and  Costa  Rica,  for  which  reason,  as  the  fault  was  common, 
it  cannot  do  any  harm  or  benefit  to  either  Government. 

Seiior  Ayon  argues  that  the  clause  was  written  for  the 
special  benefit  of  Nicaragua,  and  for  the  purpose  of  protect- 
ing her  against  surprises  of  Costa  Rica  through  the  unpop- 
ulated regions  of  the  Lake  and  the  San  Juan  river.  But  to 
maintain  this  proposition  is  tantamount  to  ignore  Article  X 
of  the  treaty,  because  its  language  plainly  and  intelligibly 
expresses  that  the  promise  that  no  hostilities  should  be  ever 
made  on  the  lake  and  the  river  was  mutual,  and  that  the 
obligation  of  complying  with  this  promise  was  also  mutual. 
How  can  it  be  ignored  that  Costa  Rica,  according  to  the  treaty, 
is  joint  owner  of  the  Bay  of  San  Juan,  and  that  it  has  the 
right  of  navigation  on  the   San  Juan  river,  and  that  it  has 


132 

therefore  exactly  the  same  interest  as  Nicaragua  in  securing 
that  that  route,  which,  in  the  future,  will  be  its  most  important 
thoroughfare,  should  be  sheltered  from  hostilities  even  in 
the  unhappy  event  of  a  war  with  its  neighbor  ? 

The  history  of  the  treaty  clearly  says  that  the  clause  was 
written  because  the  Bay  of  San  Juan,  the  San  Juan  river,  and 
the  lake  were  an  open  road  for  the  invaders  of  the  Central 
American  soil  in  1855  and  1857.  Struggles  between  Costa 
Rica  and  Nicaragua  upon  those  places  w^ould  offer  foreigners 
an  easy  access  to  both  countries  to  their  common  detriment. 

If  Nicaragua  owns  unpopulated  and  undefended  lands  on 
the  banks  of  the  San  Juan  river,  the  right  bank  of  the  same, 
or  the  portion  thereof  which  belongs  to  Costa  Rica,  is  no 
more  populated  or  better  defended  ;  and  if  it  were  possible 
to  think,  as  Senor  Ayon  says,  that  Nicaragua  was  anxious  to 
protect  her  undefended  frontier  against  surprises  on  the  part 
of  Costa  Rica,  there  is  no  reason  to  suppose  that  Costa  Rica 
herself  did  not  entertain  the  same  idea,  because  the  circum- 
stances were  equal  for  the  two  countries,  and  there  was  ex- 
actly the  same  possibility  on  the  part  of  each  one  to  open 
and  carry  on  hostilities  against  the  other  on  the  places  re- 
ferred to. 

No  matter  how  strained  the  construction  placed  upon  this 
mutual  promise  may  be,  it  can  never  lead  to  the  belief  that 
the  promise  of  guarantee  made  by  a  third  party,  Salvador, 
was  an  obligation  on  the  part  of  Costa  Rica  in  favor  of  Nic- 
aragua, as  it  was  indispensable  to  convert  it  into  a  condition 
in  favor  of  one  of  the  parties  and  against  the  other. 

Granting  even  what  is  inconceivable,  the  most  that  can 
be  admitted  is  that  the  guarantee  was  mutual  or  common. 
Senor  Ayon  says  that  it  was  not  complied  with  ;  but  who 
failed  to  comply  with  it  ?  Was  it  Costa  Rica  ?  Was  it  Nic- 
aragua? Either  none,  or  both,  failed;  and,  if  both  failed, 
neither  party  can  found  on  its  failure  an  argument  of  nullity, 
because  reason  and  common  sense  declare  that  whoever 
makes  a  complaint  has  to  rest  on  the  foundation  that  he  has 
on  his  part  faithfuUy  complied  with  the  obligation. 


133 

Even  granting,  gratia  arguendi,  that  Costa  Kica  was  bound 
to  guarantee  to  Nicaragua  that  it  should  not  be  hostile  to 
her,  even  in  case  of  war,  at  the  places  marked  by  Article  X 
of  the  treaty,  and  that,  by  an  extremely  one-sided  view  of 
the  case,  Nicaragua  had  not,  on  her  part,  the  same  obliga- 
tion in  favor  of  Costa  Kica,  still  the  alleged  cause  of  nullity 
would  not  exist.  At  the  most,  there  would  be,  in  that  ex- 
treme case,  a  proper  matter  for  negotiation,  or  a  temporary 
suspension  of  the  effects  of  the  treaty  until  the  delinquent 
party,  after  being  served  with  the  proper  notice,  should  com- 
ply with  its  duty. 

Carlos  Calvo  says  in  this  respect  what  follows : 

"  A  treaty  can  be  terminated  before  the  period  fixed  for  its 
duration  when,  besides  the  causes  of  modification  or  nullifica- 
tion just  mentioned,  one  of  the  contracting  parties  refuses  to 
fulfil  its  engagements,  and  gives  thus  to  the  other  party  im- 
plicitly the  right  of  likewise  freeing  itself.  ^  ^  ^  The  non- 
execution  may  on  the  other  side  refer  only  to  one  clause  rela- 
tively secondary  (this  would  be  the  case  with  Costa  Eica  and 
Nicaragua  in  the  present  hypothesis),  and  may  therefore  not 
imply  any  intention  of  evading  the  other  obligation  of  the 
treaty.  In  this  case  there  is  7iot  necessarily  a  complete  and  final 
rujjture  of  the  treaty^  hut  there  will  he  oydy  laatters  for  confer- 
ences and  negotiations  ;  or,  in  other  words,  a  suspension  of  ac- 
tion until  the  reasons  for  refusing  may  have  heen  considered 
and  weighed  in  due  form. ''^ 

When  did  Nicaragua  ask  Costa  Rica  to  give  the  guarantee  ? 

She  never  did,  because  on  her  own  part  she  would  have 
had  to  submit  herself  to  the  same  burden. 

The  guarantee  had  been  set  aside,  in  fact,  from  the  time  of 
the  making  of  the  contract ;  and  if  it  is  now  spoken  of  it  is. 
only  because  it  furnishes  one  of  those  means  to  which  the 
contending  parties  are  accustomed  to  resort  to  under  certain 
circumstances  in  support"  of  untenable  causes. 


'Droit  International,  «fec.,  Part  1,  §739. 


Chapter   XV. 

EXAMINATION  OF  THE  LATTER  REASONS  ALLEGED  BY  NICARAGUA  IN  SUPPORT 
OF  HER  THEORY  THAT  THE  TREATY  OF  LIMITS  IS  INVALID. 

It  is  said  that  the  treaty  of  limits  abridges  the  sovereignty 
of  Nicaragua,  deeply  wounds  her  dignity,  and  causes  great 
injury  to  her  interests. 

I  have  already  transcribed  what  Gen.  Don  Joaquin  Zavala 
set  forth  in  connection  with  this  point,  and  was  assented  to 
and  confirmed  by  the  Nicaraguan  Secretary  of  State,  Don 
Anselmo  H.  Eivas. 

By  the  explicit  confession  of  the  Nicaraguan  Government 
the  validity  of  the  treaty  is  not  impeached  because  it  lacks 
this  or  the  other  formality ;  but  because  it  is  alleged  that  it 
does  injury  to  the  interests  of  Nicaragua,  and  wounds  her 
national  pride,  and  abridges  her  sovereign  rights. 

But  when  or  where  has  it  happened  that  the  interest  of 
one  of  the  contracting  parties  is  a  legitimate  cause  for  the 
nullification  of  the  compacts?  There  is  no  Code  in  the 
world  which  has  ever  sanctioned  such  an  immoral  principle  ; 
while,  on  the  contrary,  every  law  and  statute  ever  enacted  es- 
tablishes that  a  contract  once  made  and  perfected  is  the  law 
to  which  the  contracting  parties  must  submit  on  the  partic- 
ular matter  which  has  been  the  subject  of  their  agreement ; 
and  that  neither  of  the  said  parties  can  be  released  from 
their  respective  engagements  and  exempted  from  complying 
with  them  except  by  mutual  consent. 

This  principle  governs  the  contractual  relations  both  among 
private  parties  and  nations.  It  would  be  tedious,  and  even 
offending  to  the  common  sense  of  humanity,  to  look  for  au- 
thorities in  support  of  these  views. ' 

An  equitable  arrangement,  secured  by  the  mediation  of  a 
friendly  government,  whose  offices  have  been  accepted  with 


135 

gratitude,  setting  at  rest  a  controversy  which  had  been  pend- 
ing for  many  years — sometimes  in  quiet  diplomatic  discus- 
sion, sometimes  little  less  than  with  arms  in  hand — never  can 
be  construed  as  an  abridgement  of  the  sovereignty,  or  as  'a 
wound  to  the  dignity  and  pride  of  the  nation  which  assented 
to  it. 

All  nations  adjust  by  settlements  of  this  kind  the  differences 
which  unavoidably  arise  among  them,  and  by  these  arrange- 
ments they  rather  reaffirm  their  independence,  and  secure  all 
the  benefits  which  peace  brings  with  it. 

By  the  treaty  of  limits  the  Nicaraguan  Territory,  far  from 
having  sustained  any  kind  of  dismemberment,  proved  on  the 
contrary  to  have  been  enlarged  ;  and  this  is  shown  by  his- 
torical docuuients  of  incontrovertible  strength,  which  I  have 
quoted  elsewhere.  But  supposing  that  this  is  not  the  fact, 
and  that  Nicaragua  actually  gave  up  a  portion  of  more  or  less 
extent  of  her  territory,  who  has  ever  said  that  such  giving 
up  brings  with  it  the  nullity  of  the  compact  by  which  it  was 
witnessed  ?  A  nation  can  never  renounce  her  own  independ- 
ence as  an  individual  can  never  alienate  his  freedom  ;  and 
the  compact  where  such  things  were  stipulated  would  be  void 
in  itself.  But  nations  can  renounce  and  give  up,  and  they 
do  so  daily,  a  portion  of  their  territory,  without  any  attempt 
having  ever  been  made,  except  the  present  one  of  Nicaragua, 
to  nullify  the  agreement  on  this  ground. 

Should  such  a  principle  be  admitted,  there  would  be  no 
nation  who  would  acknowledge  to  be  bound  by  international 
compacts  affecting  their  frontiers.  Mexico  would  come  and 
ask  for  the  nullification  of  the  treaty  of  Guadalupe-Hidalgo, 
made  by  her  with  the  United  States  in  1848.  Guatemala 
would  come  also  and  claim  that  her  treaty  with  Mexico,  of 
1883,  is  null  and  void,  and  the  result  would  be,  in  fine,  that 
the  repulsive  and  famous  dream  of  Hobbes,  "  the  war  of  all 
against  all,"  would  be  realized. 

The  principle  which  I  maintain  is  so  universally  admitted 
that  not  even  in  case  of  war,  in  which  force,  it  might  be 


136 

said,  is  the  cause  which  elicits  the  consent,  the  invalidity  of 
the  compact  cannot  be  claimed. 

In  connection  with  this,  Dalloz  says  as  follows : 

"  To  show  that  these  treaties  (the  unequal  ones)  are  bind- 
ing upon  the  contracting  parties,  it  is  enough  to  think  that 
when  two  nations  resort  to  war,  they  accept  beforehand  the 
consequences  of  their  action.  Each  one  on  its  part  hopes  to 
succeed  against  the  other,  and  both  must  abide  by  the  re- 
sult. The  one  who  cedes  something  would  certainly,  if  vic- 
torious, have  demanded  the  same  thing,  and  the  title  so  ac- 
quired would  have  been  considered  by  it  no  less  valid  and 
permanent.  If  the  title  is  good  when  in  favor  of  one,  it  must 
also  be  good  when  in  favor  of  the  other." 

"It  is  a  matter  of  public  interest  that  every  agreement  or 
compact  should  be  held  binding  upon  the  parties  who  enter 
into  it ;  and  besides  this  there  is  another  consideration  which 
must  be  taken  into  account  when  the  agreement  or  compact  is 
a  treaty  of  peace.  This  treaty  is  a  compromise  between  the 
conqueror  and  the  conquered,  and  a  protection  for  the  latter 
against  the  former  because  it  affords  the  only  way  of  escap- 
ing the  law  of  might.  The  conquered  party  submits  to  sac- 
rifices, but  it  has  to  abide  by  its  promises,  since  otherwise 
the  conqueror,  being  unable  to  rely  on  its  faith,  would  be 
compelled  to  protract  the  war. 

To  secure  the  reign  of  order  among  the  different  states,  it 
is  absolutely  necessary  that  their  respective  engagements 
and  compromises  should  be  held  sacred.  ^ 

When  nations  (the  same  as  private  parties)  think  they 
have  been  wronged  by  the  provisions  of  the  treaties  entered 
into  by  them,  the  way  to  obtain  redress,  suggested  by  reason 
and  principle,  is  not  to-  denounce  them ;  but  to  enter  into  ne- 
gotiations for  the  purposes  of  obtaining  the  desired  change, 
always  upon  the   impregnable  foundation  of   the    bespect 

OF  THE  PLEDGED  FAITH  AND  THE  COMPLIANCE  WITH  THE  WORD 
GIVEN, 


Dalloz.     Repertoire,  word  Trait6  International,  Art.  1,  §  4,  No.  127. 


THIRD   PART. 


THIED  PART. 

ANSWER  TO  THE  QUESTIONS  PROPOUNDED  BY  NIC- 
ARAGUA IN  REGARD  TO  THE  RIGHT  CONSTRUC- 
TION OF  THE  TREATY  OF  LIMITS. 


Chapter  I. 

WHETHER  THE  STARTING-POINT  OF  THE  BORDER  LINE  IS  MOVABLE  AS  THE 
WATERS  OF  THE  RIVER,  OR  WHETHER  THE  COLORADO  RIVER  IS  THE  LIMIT 
OF  NICARAGUA,  AND  WHETHER  THE  WATERS  OF  THE  SAN  JUAN  RIVER  CAN 
BE  DEVIATED  WITHOUT  THE  CONSENT  OF    COSTA  RICA. 

In  compliance  with  Article  VI  of  the  Convention  of  Arbi- 
tration concluded  at  Guatemala,  and  by  telegram  received 
at  the  city  of  San  Jost^,  of  Costa  Rica,  on  the  23d  of  June 
ultimo,  the  Government  of  Nicaragua  communicated  with  the 
Government  of  Costa  Rica  the  eleven  questions  or  points 
which  the  former  considers  to  be  of  doubtful  interpretation, 
and  which  are  to  be  submitted  additionally  to  the  decision  of 
the  Arbitrator. 

For  Costa  Rica  there  is  not  one  single  point  in  the  treaty 
of  limits  w^hich  is  not  perfectly  clear  and  intelligible,  or  the 
interpretation  of  which  admits  of  any  doubt.  For  this  rea- 
son I  do  not  submit  to  the  consideration  of  the  Arbitrator 
any  question  relative  to  this  point,  and  shall  have  to  confine 
myself  to  answer  those  which  the  Government  of  Nicaragua 
has  propounded,  and  dispel  any  doubt  which  might  arise 
therefrom. 

But  while  it  is  true  that  the  treaty  is  clear,  it  is  also  true 
that  the  doubts  propounded  by  Nicaragua  exhibit  such 
subtlety  and  ambiguity  as  scarcely  can  be  found  elsewhere, 


140 

the  intention  being  transparent,  tliat  they  have  been  formu- 
lated to  evade,  in  a  subsidiary  way,  the  effects  of  the  treaty 
of  1858,  even  in  case  that  it  should  be  held  vahd. 

The  interrogatories  of  Nicaragua  are  capable  of  admitting 
systematical  arrangement  and  classification  in  relation  to  the 
different  subjects  to  which  they  refer  respectively ;  and  so, 
in  order  to  avoid  repetitions  and  to  present  in  its  true  light 
each  one  of  these  subjects,  it  has  seemed  to  me  advisable  to 
somewhat  modify  the  order  in  which  the  questions  appear 
stated  and  form  several  groups  which  may  be  studied  in- 
telligently and  more  conveniently. 

The  first  group  of  questions  herein  referred  to  consists  of 
questions  Nos.  1,  7  and  9,  such  as  stated  on  pages  9  and  10, 
and  read  as  follows  : 

"  (1.)  Punta  de  Castilla  having  been  designated  as  the  be- 
ginning of  the  border  line  on  the  Atlantic  side,  and  finding 
itself  according  to  the  same  treaty,  at  the  mouth  of  the  San 
Juan  river ;  now  that  the  mouth  of  the  river  has  been 
changed,  from  where  shall  the  boundary  start  ?  " 

"  (7.)  If,  in  view  of  Article  V  of  the  treaty,  the  branch  of 
the  San  Juan  river  known  as  the  Colorado  river  must  be  con- 
sidered as  the  limit  between  Nicaragua  and  Costa  Rica,  from 
its  origin  to  its  mouth  on  the  Atlantic  ?  " 

"  (9.)  The  eminent  domain  over  the  San  Juan  river  from 
its  origin  in  the  Lake  and  down  to  its  mouth  on  the  Atlantic, 
belonging  to  Nicaragua  according  to  the  text  of  the  treaty, 
can  Costa  Rica  reasonably  deny  her  the  right  of  deviating 
those  waters  ?  " 

I  shall  set  forth  at  the  outset  that  question  No.  1  is  am- 
biguous and  admits  of  three  interpretations,  as  it  may 
mean  either  that  the  new  mouth  of  the  San  Juan  river  is 
the  Colorado  river,  into  which  a  great  part  of  the  waters  of 
the  former  have  been  emptied  ;  or  that  the  new  mouth  is  the 
branch  named  Taura,  also  a  large  one  during  late  years ;  or 
that  it  is  the  "  Cano  de  Animas,"  which  is  nearer  to  the 
original  mouth  than  the  Taura  and  .the  Colorado  rivers. 


141 

Owing  to  this  ambiguity  of  the  question,  three  different 
answers  have  to  be  given. 

The  San  Juan  river,  which  is  the  outlet  (Desaguadero)  of 
the  Lake  of  Nicaragua,  carries  the  waters  of  this  lake  to  the 
Caribbean  Sea  through  a  course  of  about  150  miles,  but  in 
reaching  a  certain  point,  some  miles  distant  from  the  coast  in 
a  straight  line,  forks  itself  in  two  branches,  one  of  which 
runs  towards  the  east,  which  is  called  the  Colorado  river, 
while  the  other,  which  is  the  trunk,  continues  towards  the 
north  and  empties  into  the  Bay  of  San  Juan,  not,  however, 
without  having  formed  two  other  branches  at  a  short  distance 
from  the  mouth,  which  are  the  streams  named  Taura  and 
Cano  de  Animas. 

The  map  which  I  accompany  hereto,  marked  No.  II,  made 
in  1851  by  Baron  A.  Yon  Bulow,  shows  the  course  of  the 
San  Juan  river  and  the  peculiar  shape  of  its  delta,  divided 
into  two  islands,  one  between  the  San  Juan  and  the  Taura 
rivers,  and  the  other  between  the  Taura  and  the  Colorado 
rivers. 

The  location  and  course  of  the  new  stream  called  Cano  de 
Animas  is  also  shown  by  Map  No.  XI  appended  to  the  "  Re- 
port of  the  United  States  Nicaraguan  Surveying  Party,  1885, 
by  Civil  Engineer  A.  G.  Menocal,  IT.  S.  N.,"  a  copy  of  which 
I  also  append. 

On  the  left  side  of  the  Bay,  on  the  ancient  mouth  of  the 
river,  the  port  of  San  Juan  del  Norte,  otherwise  called  Grey- 
town,  is  situated,  and  on  the  right  there  is  the  strip  of  land, 
the  extremity  of  which  is  known  by  the  name  of  Punta  de 
Castilla  Point. 

These  geographical  antecedents  having  been  given,  nothing 
is  easier  than  rightly  understanding  Article  II  of  the  treaty 
of  limits  of  April  15,  1858,  and  satisfactorily  answering  the 
three  questions  propounded. 

Article  II  of  the  treaty  reads,  that  the  dividing  line  be- 
tween the  two  Republics  will  begin  at  the  extremity  of 
Punta  de  Castilla  Point  on  the  mouth  of  the  San  Juan  river, 


142 

and  that  it  will  continue  along  the  right  bank — that  is, 
the  Costa  Rican  bank — of  the  same  river  up  to  a  certain  point 
three  English  miles  distant  from  Castillo  Yiejo.  Therefore 
it  is  plain  that  both  Punta  de  Castilla  Point  and  the  whole 
delta  formed  by  the  San  Juan  and  Colorado  rivers  are  Costa 
Rican  territory. 

The  question  propounded  by  the  Government  of  Nicara- 
gua might,  indeed,  have  been  formulated  in  a  plainer  way,  as 
follows  :  "  Whether  in  spite  that  the  treaty  of  limits  of  April 
15,  1858,  establishes  that  the  starting-point  of  the  border 
line  between  the  two  Republics  on  the  side  of  the  Caribbean 
sea  is  the  extremity  of  Punta  de  Castilla  Point,  and  that  the 
frontier  runs  from  there  along  the  right  bank  of  the  San 
Juan  river  up  to  a  point  three  miles  before  reaching  Castillo 
Viejo,  would  it  be  permissible  for  Nicaragua  to  remove  that 
starting-point  and  that  frontier,  and  carry  both  to  either 
Cano  de  Animas  or  the  Taura  river,  or,  better  still,  the  Col- 
orado river,  which  are  within  the  Costa  Rican  territory  and 
in  the  delta  formed  by  the  Colorado  and  San  Juan  rivers,  for 
the  reason  that,  subsequently  to  the  treaty  of  1858,  the  vol- 
ume of  the  waters  of  the  San  Juan  river  has  decreased,  and 
because  the  Colorado  river  has  become  more  copious,  and 
because  new  mouths  have  been  opened  on  the  sea,  always 
inside  the  delta  belonging  to  Costa  Rica  ?  " 

The  rigor  of  logic  demands  that  this  question  should  be 
answered  negatively.  The  three  mouths  of  the  Colorado, 
the  Taura  and  the  San  Juan  rivers,  which  now  exist,  also 
existed  at  the  time  in  which  the  treaty  was  made.  The  three 
rivers  then  flowed  to  the  Atlantic  as  now,  and  each  one  had  its 
own  separate  and  distinct  mouth.  What  happened  with  them 
in  1858  is  the  same  that  happens  at  present,  through  a  tract 
of  many  miles.  And  the  limit  ascribed  by  the  treaty  to  the 
two  Republics  is  neither  the  Colorado  river,  nor  the  Taura 
stream,  nor  the  Cano  de  Animas,  but  the  river  or  branch 
which  was  known  at  the  date  of  the  compact  by  the  name  of 
the  San  Juan  river,  at  the  extremity  of  the  right  bank  of 
which  Punta  de  Castilla  Point  is  found. 


143 

The  geographical  point  named  in  1858,  the  mouth  of  the 
San  Juan  river,  has  not  changed  its  position,  although  it  may 
be  that  the  volume  of  waters  emptied  through  it  into  the  ocean 
is  now  less  than  in  1858,  and  although  it  may  be  also  that  the 
waters  of  the  Colorado  river  have  increased  or  found  new 
outlets  through  the  Cano  de  Animas  or  any  other  opening. 

Both  legally  and  geographically  each  one  of  these  points 
is  different  and  independent  of  the  other,  as  well  as  per- 
fectly visible,  and  no  one  of  the  contracting  parties  can  be 
allowed  by  its  own  will,  and  according  to  its  own  convenience, 
to  take  the  one  for  the  other. 

In  other  words,  the  geographical  point,  which,  in  the  treaty 
of  1858,  was  called  the  mouth  of  the  San  Juan  river,  has  not 
changed  in  position,  whatever  the  capricious  course  of  its 
waters  (which  never  have  run  on  the  same  bed)  might  have 
been.  The  Bay  of  San  Juan  de  Nicaragua,  where  Greytown 
is  located,  is  now  found  in  the  same  place  where  it  always 
was,  where  it  appears  to  have  been  by  all  the  maps  contem- 
porary to  the  treaty ;  and  the  mouth  of  the  Colorado  river, 
much  more  to  the  south,  is  found  now  exactly  on  the  same 
place  as  it  was  in  the  beginning,  and  the  mouth  of  the  Taura 
river  is  now  also  where  it  was.  The  geographical  position  of 
all  these  places  remains  the  same  as  when  the  treaty  was 
made,  and  the  number  of  new  mouths,  or  outlets,  or  open- 
ings, which  may  have  been  made  afterwards  is  absolutely 
immaterial. 

The  work  of  nature  has  produced  a  diminution  of  water  in 
the  San  Juan  river,  and  a  correlative  increase  in  that  of  the 
Colorado  river,  and  also  new  outlets  or  mouths;  but  this 
circumstance  does  not  affect,  nor  can  it  affect,  the  geographi- 
cal limit  fixed  by  the  treaty,  which  is  perfectly  clear  and  vis- 
ible, as  said  before,  and  is  not  movable  like  the  waters. 

The  point,  or  cape,  named  in  the  treaty  of  1858  "  Punta 
de  Castilla,"  is,  and  has  to  be,  the  end  of  the  line  on  the 
Atlantic  side  because  the  treaty  says  so  ;  that  "  Punta  de 
Castilla  "  is  not,  nor  has  it  ever  been,  at  the  mouth  of  the 


144 

Colorado  river,  nor  at  the  mouth  of  the  Taura  stream,  nor  at 
any  bank  of  the  "  Cano  de  Animas,"  nor  at  any  other  place 
which  Nicaragua  may  now  be  pleased  to  call  the  mouth  of 
the  San  Juan  river ;  but  at  the  right  bank  of  the  mouth 
that  the  San  Juan  river  had  on  the  15th  of  April,  1858,  when 
the  treaty  of  limits  was  concluded. 

Supposing,  gracia  arguendi^  that  the  Colorado  river,  the 
mouth  of  the  Taura  river,  and  the  "  Cano  de.  Animas  "  were 
not,  as  they  are,  geographical  entities  different  from  the  San 
Juan  river,  existing,  and  recognized  to  exist,  when  the  treaty 
was  made ;  and,  also,  that  the  old  bed  of  the  San  Juan  river 
was  left  dry,  and  that  the  whole  mass  of  the  waters  of  that 
river  flowed  into  the  bed  of  the  Colorado  river,  or  emptied 
either  through  the  mouths  above  named,  or  through  some 
others  unknown — even  in  that  case  it  would  be  plain  that 
"  Punta  de  Castilla,"  the  point,  or  cape,  which  existed  in 
1858,  and  the  ancient  bed  of  the  San  Juan  river,  the  bed 
through  which  it  flowed  in  1858,  shall  continue  to  be  the 
border  line  between  the  two  nations. 

International  law  does  not  allow  any  doubt  upon  this 
subject. 

In  1856,  Mr.  Caleb  Cushing,  Attorney-General  of  the  United 
States,  was  called  to  give  his  authorized  opinion  in  regard 
to  it. 

A  portion  of  the  frontier  between  the  United  States  and 
Mexico  is  marked  by  the  Kio  Grande  or  Bravo  river,  which 
is  subject  to  frequent  changes  in  its  course,  and  often  leaves 
its  bed  to  empty  into  the  Gulf  of  Mexico  through  other  outlets. 
The  opinion  of  Mr.  Cushing  was  asked,  on  November  11, 1858, 
on  the  question,  whether  the  border  line  between  both  coun- 
tries changes  together  with  the  river,  or  whether  it  is  sta- 
tionary, and  constantly  remains  at  the  place  where  the  bed 
of  the  river  originally  stood,  even  if  it  is  dry. 

The  answer  of  Mr.  Cushing,  which  can  be  consulted  on 
page  175  and  the  folloTving,  of  Volume  VIII  of  the  Opinions 
of  the  Attorneys-General  of  the  United  States,  is  a  complete. 


145 

conscientious,  and  really  masterly  work.  The  doctrine  ex- 
plained by  him  was  accepted  and  endorsed  by  the  Govern- 
ment of  the  United  States,  and  it  is  held  to  be  an  authority 
on  the  subject,  in  Yol.  I  of  the  Digest  of  the  International 
Law  of  the  United  States  of  Dr.  Wharton,  Chapter  II,  §  30, 
page  96. 

Mr.  Gushing  says : 

"If,  deserting  its  original  bed,  the  river  forces  for  itself  a 
new  channel  in  another  direction,     *     *     *     the  boundary 

REMAINS  IN  THE  MIDDLE  OF  THE  DESERTED   RIVER    BED.       For,  in 

truth,  just  as  a  stone  pillar  constitutes  a  boundary,  not  be- 
cause it  IS  a  stone,  but  because  of  the  place  in  which  it  stands, 
so  a  river  is  made  the  limit  of  nations,  not  because  it  is  run- 
ning water  bearing  a  certain  geographical  name,  but  because 
it  is  water  flowing  in  a  given   channel  and  within  given 

BANKS,  which  ARE  THE  REAL  INTERNATIONAL  BOUNDARY." 

"  Such  is,"  Mr.  Gushing  says  further,  "  the  received  rule  of 
the  law  of  nations  on  this  point  as  laid  down  by  all  the 
writers  of  authority."  (See  ex.  gr.  Puifend.,  Jus  Nat.,  Lib.  IV, 
cap.  7,  sec.  II ;  Gundling,  Jus  Nat.,  p.  248  ;  Wolff,  Jus  Gen- 
tium, 8.  106-109  ;  Vattel,  Droit  des  Gens.,  Liv.  I,  chap.  22, 
s.  268,  270  ;  Stypmanni,  Jus  Marit.,  Gap.  V,  n.  476-552  ; 
Eayneval,  Droit  de  la  Nature,  Tom.  I,  p.  307  ;  Merlin,  K4- 
pertoire,  ss.  voc.  alluv.) 

"  I  might  multiply  citations  to  this  point  from  the  books  of 
public  law.  But  in  order  that  either  the  United  States  or 
the  Mexican  Republic,  whichever  in  the  lapse  of  time  shall 
happen  to  be  inconveniently  affected  by  the  application  of 
this  rule,  may  be  fully  reconciled  thereto,  it  seems  well  to 
show  that  it  is  conformable  to  the  common  law  of  both  coun- 
tries." 

To  prove  that  this  is  the  law  of  Mexico,  and  of  the  coun- 
tries of  Spanish  origin,  Mr.  Gushing  quotes  from  Riquelme, 
Don  Andres  Bello  and  Don  Jose  Maria  de  Pando,  as  well  as 
from  the  "  Derecho  Publico  "  by  Almeda. 

"  Don  Antonio  Riquelme,"  he  says,  '*  states  the  doctrine  as 
foUows : 
10 


146 

"  When  a  river  changes  its  course,  directing  its  currents 
through  the  territory  of  one  of  the  two  coterminous  States, 

THE  BED  WHICH  IT  LEAVES  DRY  REMAINS      *      *      *      RETAINED  AS 

THE  LIMIT  BETWEEN  THE  TWO  NATIONS ;  and  the  river  enters 
so  far  into  the  exclusive  dominion  of  the  nation  through 
whose  territory  it  takes  the  new  course."  (Derecho  Inter- 
nacional,  vol.  I,  p.  83). 

"  Don  Andres  Bello  and  Don  Jos^  Maria  de  Pando,"  Mr. 
Cushing  continues,  "  both  enunciate  the  doctrine  in  exactly 
the  same  words,  namely  : 

"  When  a  river  or  lake  divides  two  territories  *  «  * 
the  rights  which  either  has  in  the  lake  or  river  do  not  un- 
dergo any  change  by  reason  of  alluvion.  *  *  *  if ^  by 
any  natural  accident,  the  water  which  separated  the  two  States 
e7iters  of  a  sudden  into  the  temtory  of  the  other ^  it  will  thence- 
forth belong  to  the  State  whose  soil  it  occupies,  and  the  land, 
including  the  abandoned  river  channel  or  hed,  will  incur  no 
change  of  master.'^''  (Bello,  Derecho  Internacional,  p.  38 ; 
Pando,  Derecho  Internacional,  p.  99). 

Mr.  Cushing  quotes,  furthermore,  copiously  from  the  Eoman 
civil  law,  from  the  civil  law  of  Spain,  from  that  of  Mexico, 
and  from  the  laws  in  force  in  England  and  in  the  United 
States ;  and  especially  in  regard  to  the  latter  from  Bracton 
de  Legg.  Anglige,  from  Blackstone's  Commentaries,  from 
Woolrych,  and  from  Angel  on  Water-courses. 

In  addition  to  the  opinion  of  Mr.  Cushing,  many  others 
can  be  cited  whose  authority  it  is  impossible  to  deny. 

Sir  Traver  Twiss,  Counsel  for  the  Crown  in  the  Great 
British  Empire  and  Kegius  Professor  of  International  Law 
in  the  University  of  Oxford,  maintains  the  same  doctrine, 
and  supports  it  on  the  authority  of  Grotius  and  Martens.  ^ 

Grotius  says : 

"A  river  that  separates  two  empires  is  not  to  be  consid- 
ered barely  as  water,  hut  as  water  confined  within  such  and  such 


'The  Law  of  Nations.     Oxford,  1861,  page  208. 


147 

hanks^  and  running  in  such  and  such  a  channel  ;  therefore,  the 
addition,  subtraction,  or  such  changes  of  its  particles  as  allow 
the  whole  to  subsist  in  its  ancient  form,  allows  the  river  to 
be  considered  as  the  same.  *  *  *  7/  a  river  should  have 
hecome  dried  up^  the  middle  of  the  channel  would  remain  as 
before,  the  boundary  of  empire  between  two  nations^ 

Martens,  in  his  "  Precis  du  Droit  des  Gens,"  says : 

"  In  case  that  a  river  should  change  completely  its  bed, 
the  bed  dried  up  would  remain,  dividing  the  two  nations  as 
the  river  divided  them  before."^ 

Calvo,  in  his  famous  "  Traits  du  Droit  international  th^- 
orique  et  pratique,"  expresses  himself  as  follows : 

"  When  a  river  has  opened  for  itself  a  new  bed  or  channel 
through  the  neighboring  lands,  or  when  a  lake  has  opened 
new  outlets  or  divides  itself  into  several  branches,  the  politi- 
cal frontier  of  the  bordering  states  does  not  remain  for  that 
less  fixed  or  established  in  the  same  places  in  which  it  was  be- 
fore:'^ 

Bluntschli  says  : 

"  When  the  river  completely  abandons  its  bed  to  flow  in 
another  direction,  the  ancient  channel  continues  to  be  the  divid- 
ing liner^ 

Woolsey,  in  his  excellent  "  Introduction  to  the  Study  of 
the  International  Law,"  decides  the  question  in  the  same 
way,  and  uses  the  following  language  : 

"  Where  a  navigable  river  forms  the  boundary  between 
two  states,  both  are  presumed  to  have  free  use  of  it,  and  the 
dividing  line  will  run  in  the  middle  of  the  channel  unless  the 
contrary  is  shown  by  long  occupancy  or  agreement  of  the 
parties.  If  a  river  changes  its  bed,  the  line  through  the  old 
channel  continues.''  ^ 

Halleck,  in  his  "  International  Law,"  Chapter  YI,  §  25, 
says  as  follows  : 


'  Martens.    Precis  du  Droit  des  Gens,  §  39. 
""  Book  IV,  §  294. 

^Le  Droit  Internationel  Codifi6,  Art.  299. 
*  Woolsey,  §62. 


148 

"  Where  the  river  abandons  its  ancient  bed  and  forms  a 
new  channel,  or  where  a  lake  leaves  its  former  banks  and 
forms  a  new  lake  or  a  series  of  new  lakes,  the  houndaries  of 
the  states  remam  in  the  abandoned  bed  of  the  river  or  in  the 
positio7i  formerly  occupied  by  the  laJce^ 

And  the  American  statesman  who  now  presides  over  the 
Foreign  Office  of  the  United  States,  the  Hon.  Secretary  of 
State,  Mr.  Bayard,  has  rested  on  these  grounds,  and  main- 
tained in  regard  to  the  Rio  Grande,  or  Bravo,  river,  which 
marks  for  a  long  space  the  Mexican  boundary,  the  following 
doctrine  : 

"  It  may  be  proper  to  add  that  it  has  been  held  in  this 
Department  that  when,  through  the  changing  of  the  channel 
of  the  Rio  Grande,  the  distance  of  an  island  in  the  river  from 
the  respective  shores  has  been  changed,  the  line  adjusted  by 
the  Commissioners  under  the  treaty  is  nevertheless  to  re- 
main as  originally  drawn."  ^ 

(Mr.  Bayard,  Secretary  of  State,  to  Mr.  Bowen,  June 
12,  1885). 

It  results  fi'om  the  above,  that  the  first  question  propounded 
by  Nicaragua  ought  to  be  answered,  upon  the  authority  of 
all  writers  on  International  Law,  in  the  following  way :  The 
dividing  line  between  Costa  Rica  and  Nicaragua  is  the  one 
marked  by  the  treaty  of  1858,  and  no  other.  This  line  starts 
from  the  cape,  or  point,  named  "  Punta  de  Castilla,"  and  runs 
along  the  right  bank  of  the  stream  which  at  that  date  was 
known  by  the  name  of  the  San  Juan  river ;  and  this  will  be 
the  case,  even  if  that  stream,  whether  trunk,  or  branch,  or  river, 
would  abandon  its  course,  and  the  whole  of  its  waters  would 
empty  into  the  Atlantic  through  the  channels  of  the  Colorado 
river,  or  the  Taura,  or  the  "  Cano  de  Animas,"  or  any  other 
whatsoever. 

Passing  now^  to  answer  question  No.  7,  I  have  to  say  in 
the  same  way  that  the  Colorado  river  <3an  never  be  considered 


'  Dr.  Wbartoa's  Digest,  Vol.  I,  Chapter  II,  §  30,  p.  95. 


149 

as  the  boundary,  or  frontier,  between  the  two  nations,  un- 
less Article  II  of  the  treaty,  which  reads  that  said  limit  shall 
be  the  San  Juan  river,  from  Punta  de  Castilla  up  to  a  point 
three  English  miles  distant  from  Castillo  Viejo,  is  wholly 
wiped  out  or  ignored.  The  said  limit,  besides  being  specific- 
ally established  by  the  treaty,  is,  as  it  has  been  shown,  ac- 
cording to  the  principles  of  law,  and  the  universal  practice 
among  nations,  permanent  and  unchangeable,  even  in  case 
that  the  San  Juan  river  should  lose,  what  has  never  hap- 
pened, nor  probably  will  ever  happen,  the  whole  of  its 
waters. 

This  conclusion  is  not  modified,  but,  on  the  contrary, 
strengthened  and  confirmed  by  the  language  of  Art.  V  of  the 
treaty,  according  to  which,  and  only  temporarily  and  tran- 
siently, as  long  as  certain  circumstances,  which  afterwards 
disappeared,  should  exist,  Nicaragua  had  the  right  to  enjoy,  in 
common  with  Costa  Rica,  not  the  sovereignty,  because  this 
belongs  to  Costa  Rica,  but  the  use  and  possession  of  the  delta. 

Article  Y  of  the  treaty  reads  as  follows  : 

"  As  long  as  Nicaragua  does  not  recover  the  full  possession 
of  all  her  rights  in  the  port  of  San  Juan  del  Norte,  the  point 
named  Punta  de  Castilla  shall  be  used  and  possessed  entirely 
and  equally  and  in  common  by  both  Nicaragua  and  Costa 
Rica ;  and  the  whole  course  of  the  Colorado  river  shall  be 
the  boundary  as  long  as  this  community  of  use  and  posses- 
sion lasts.  And  it  is  further  stipulated  that  as  long  as  the 
said  port  of  San  Juan  del  Norte  exists  classified  as  free, 
Costa  Rica  shall  not  collect  from  Nicaragua  port  dues  at 
Punta  de  Castilla." 

The  course  of  the  Colorado  river  was  given  as  limit  by 
Article  Y  of  the  treaty,  only  daring  the  precarious  possession 
allowed  by  Costa  Rica  to  Nicaragua,  and  as  long  as  Nicaragua 
should  remain  deprived  of  her  port  of  San  Juan  del  Norte, 
and  by  no  means  as  a  final  and  perpetual  boundary  between 
the  two  Republics,  which  was  established  by  Article  II  of  the 
treaty,  when  it  was  provided  that  it  should  run  from  Punta 


150 

de  Castilla  along  the  right  bank  of  the  San  Juan  river  up 
to  three  miles  from  Castillo  Yiejo. 

The  special  circumstances  referred  to  in  Article  Y  of  the 
treaty  of  1858  disappeared  on  the  28th  of  January,  1860,  by 
the  treaty  concluded  between  Nicaragua  and  Great  Britain, 
and  is  known  by  the  name  of  the  Zeledon-Wyke  treaty. 
Nicaragua  recovered  under  this  treaty  the  sovereignty,  use, 
possession,  and  enjoyment  of  the  port  of  San  Juan  ;  and,  ever 
since,  the  precarious  possession  of  the  Costa  Kican  delta, 
allowed  by  Costa  Eica  to  Nicaragua,  ceased  to  exist  in  fact 
and  in  law. 

Article  Y  of  the  treaty  has  not  at  present  any  practical  ap- 
plication, and  only  belongs  to  history.  But  even  admitting 
that  the  special  circumstances  which  gave  birth  to  it  are  still 
in  existence,  and  that  Nicaragua  is  not  yet  in  full  possession 
of  the  port  of  San  Juan  del  Norte,  and  that  her  commerce  is 
now,  as  it  was  irf  1858,  obstructed  on  the  side"  of  the  Carib- 
bean Sea,  the  alleged  doubt  of  Nicaragua  should  always 
be  not  only  absurd  and  unjust,  but  even  an  attack  on  the 
rights  of  Costa  Kica.  The  most  that  Nicaragua  could  ask 
under  those  circumstances  would  be  the  use  and  possession 
in  common,  but  never  the  ownership,  or  sovereignty,  or  an 
extension  of  territory,  or  change  of  the  frontier,  against  the 
plain  language  of  Article  II  of  the  treaty  of  1858,  which  says 
that  the  San  Juan  river,  not  the  Colorado,  shall  be  the  bor- 
der line  between  the  two  Kepublics. 

This  doubt  No.  7  is  one  of  those  which  render  the  spirit  of 
Nicaragua  in  the  present  controversy  perfectly  patent.  Costa 
Rica,  by  an  act  of  most  special  favor  or  graciousness,  granted 
Nicaragua  the  use  of  Punta  de  Castilla  as  long  as  she  would 
remain  deprived  by  Great  Britain  of  her  own  port  of  San 
Juan  del  Norte.  And  now,  seventeen  years  after  she  was 
restored  to  the  possession  of  that  port,  she  comes  and  founds 
upon  that  favor  a  claim  to  the  ownership  of  what  she  herself 
declared  not  to  belong  to  her. 

This  question  No.  7  is  answered  by  itself.  It  carries  with 
it  the  most  emphatic  negative. 


151 

As  to  the  ninth  question,  that  is,  whether  Nicaragua  can 
change  the  course  of  the  San  Juan  river,  at  any  place  be- 
tween its  origin  in  the  lake  and  its  mouth  on  the  Atlantic, 
and  whether  Costa  Eica  can  reasonably  deny  her  the  right 
to  deviate  the  waters  of  that  river,  the  answer  seems  to  be 
very  obvious. 

It  is  to  be  remarked  at  the  outset,  that  even  if  the  said  op- 
erations were  permissible  for  Nicaragua,  the  location  of  the 
border  line  would  not  suffer  thereby  any  change,  because,  as 
it  has  been  shown,  the  said  frontier  would  continue  to  be 
marked  by  the  ancient  bed,  and  would  run,  in  the  same  way 
as  before,  along  the  right  bank  of  the  said  bed,  as  stated  in 
Art.  II  of  the  treaty  of  limits  of  1858.  But  as  the  deviation 
of  the  waters,  independently  of  all  questions  of  limits,  would 
cause  Costa  Rica  to  suffer  considerable  •  detriment  and 
losses  of  all  kinds,  not  owing  to  the  unavoidable  action  of 
nature  through  physical  causes  beyond  tlffe  control  of  man, 
but  owing  to  the  deliberate  will  of  Nicaragua,  the  question 
whether  Costa  Rica  has  the  right  to  oppose  such  a  thing  ap- 
pears to  be  almost  inconceivable. 

Art.  YI  of  the  treaty  of  limits  of  1858  recognizes,  in  favor 
of  Costa  Rica,  the  "  perpetual  right  of  navigation  "  in  the 
waters  of  the  San  Juan  river,  between  the  point  within  three 
miles  of  Castillo  Yiejo  and  the  mouth  of  the  river  on  the 
Atlantic  Ocean  ;  and  although  it  is  true  that  it  was  also  stip- 
ulated that  Nicaragua  should  have  the  sovereignty  and  emi- 
nent domain  over  the  waters  of  the  said  river,  said  sovereignty 
and  eminent  domain  are  to  be  understood  with  the  restriction 
that  the  right  of  perpetual  navigation  of  Costa  Rica  imposes 
upon  them.  Nicaragua  has  the  power  to  do  in  the  San  Juan 
river,  by  virtue  of  sovereignty,  all  that  she  may  be  pleased 
to  do,  provided  that  she  does  not  abridge  or  destroy,  through 
her  action,  the  rights  acquired  by  Costa  Rica.  Otherwise, 
the  said  rights  which  Costa  Rica  secured  by  the  treaty,  not 
gratuitously,  but  in  exchange  of  and  in  compensation  for 
other  rights,  that  it  had  prior  to  the  treaty  and  gave  up  by  it, 
would  become  iUusory. 


152 

This  doctrine  is  well  settled  in  municipal  law.  The  one 
who  has  the  direct  ownership  of  one  thing  cannot  render  the 
condition  of  this  thing  worse,  or  injure  the  position  of  the 
other  party  which  has  the  right  of  possession.  The  rights  of 
the  owner  are  limited  by  the  rights  of  the  cestuy  que  use. 

In  addition  to  this,  and  leaving  aside  all  the  former  con- 
siderations, it  will  be  easy  to  understand  that  when  a  country 
has  for  its  boundary  a  water  front  as  extensive  as  the  Costa 
Eican  bank  of  the  San  Juan  river  is,  innumerable  and  con- 
siderable and  legitimate  interests  of  all  kinds  must  necessa- 
rily have  been  created  in  the  neighborhood  of  that  stream, 
which  it  is  indispensable  to  respect. 

The  vast  and  fertile  northern  territories  of  Costa  Rica  are 
now  to  a  great  extent  owned  and  occupied  by  private  parties, 
who,  in  acquiring  them,  had  very  specially  in  view  their 
location  near  a  navigable  river,  or  adjoining  to  it,  or  to  its 
affluents,  and  the'  propinquity  to  the  place  through  which 
some  day  the  interoceanic  canal  shall  pass.  Let  it  be  said, 
therefore,  if  the  waters  referred  to,  such  as  they  are  at  pres- 
ent, and  as  now  kept  by  the  hand  of  God,  are,  or  are  not, 
necessary  for  Costa  Rica. 

That  necessity  cannot  be  evaded  or  left  unsatisfied  only 
because  Nicaragua  may  deem  it  advisable  for  her,  whether  in 
use  or  in  abuse  of  her  sovereignty,  to  force  those  waters  into 
different  channels. 

If  the  deviation  were  due  to  natural  causes,  then  it  would 
be  necessary  for  all  parties  concerned  to  submit  to  the  loss 
sustained  if  the  remedy  was  impossible  ;  but,  it  being  the  act 
of  the  free  and  deliberate  will  of  the  neighboring  nation,  it 
would  admit  of  but  one  construction,  consisting  in  looking  at 
that  act  as  one  of  extreme  hostility. 

Woolsey,  in  his  Introduction  to  the  Study  of  International 
Law  above  quoted,  clearly  explains  (§  62)  that  such  a  devia- 
tion would  be  illegal,  and  that  it  cannot  be  recognized  by  law. 
The  same  doctrine  is  held  by  many  other  writers  upon  this 
subject,  from  whom  I  do  not  quote,  not  to  give  too  much 
length  to  this  argument. 


153 

In  the  United  States,  perhaps  more  than  in  any  other 
country,  by  virtue  of  the  blessing  bestowed  by  Heaven  upon 
them,  among  many  others,  of  having  so  many  and  such  co- 
pious rivers,  and  of  the  circumstance  that  many  of  them 
mark,  as  the  San  Juan  river  does  between  Costa  Kica  and 
Nicaragua,  the  dividing  line  between  their  several  States, 
the  matter  now  discussed  has  been  studied  carefully  and 
settled  justly,  through  an  uninterrupted  current  of  legal  de- 
cisions. 

It  would  be  sufficient  to  cast  a  rapid  glance  at  the  stand- 
ard work  written  by  Angel,  under  the  title  of  "  A  Treatise  on 
the  Law  of  Water-courses,'"  to  find  there  most  abundant 
precedents  in  support  of  the  doctrine  which  I  maintain  in 
this  argument. 

In  Chapter  IV,  Sec.  2,  of  that  book,  devoted  to  the  study 
of  "  the  damage  done  by  voluntary  deviation  "  of  the  waters, 
innumerable  decisions  will  be  found  rendered  by  the  courts  of 
Illinois,  Connecticut,  New  York,  Maine,  Massachusetts,  New 
Hampshire,  &c.,  &c.,  all  of  them  recognizing  the  legal  prin- 
ciple, "  sie  rUere  tiio  ut  alienum  iion  ledas^'  and  subjecting  to 
responsibility  those  who,  for  their  own  profit  and  to  the  det- 
riment of  others,  divert  from  its  ordinary  channel  the  waters 
of  a  river. 

In  Chapter  XI  of  the  same  book,  devoted  to  the  study  of 
the  eminent  domain  or  sovereign  rights  of  a  nation  in  their 
relations  with  this  particular  subject  of  deviation  of  the  waters 
and  change  of  their  distribution,  the  same  legal  doctrine  is 
held  to  rule  supremely,  and  is  fully  vindicated. 

Among  the  great  number  of  cases  and  authorities  therein 
referred  to,  the  one  which  relates  to  the  Blackstone  river, 
which  divides  the  States  of  Rhode  Island  and  Massachusetts, 
and  the  course  of  which  had  been  changed,  or  ordered  to  be 
changed,  by  a  law  enacted  by  the  Legislature  of  Rhode  Island, 
to  the  detriment  of  existing  rights  and  interests  of  Massa- 
chusetts, is  particularly  applicable  to  the  point  now  under 
consideration.     It  was  decided,  in  that  case,  that  the  State  of 


154 

Ehode  Island,  or  its  Legislature,  had  no  power  to  do  such  a 
thing.  1 

But  the  best  proof  which  can  be  given  of  the  fact  that  the 
doctrine  herein  held  by  me  is  the  only  legitimate  and  correct 
one  will  be  found  in  the  explicit  sanction  which  Nicaragua 
herself  has  given  to  it. 

By  Article  VIII  of  the  treaty  of  limits  of  1858  it  was  stipu- 
lated that,  before  entering  into  any  contract  of  canalization 
or  transit,  Costa  Rica  should  be  consulted ;  and  the  reason 
of  this  provision  was,  as  plainly  stated  in  Article  YIII,  be- 
cause of  the  "  disadvantages  that  the  transaction  might  pro- 
duce "  for  Costa  Rica.  This  was  proper  and  jiist,  as,  also, 
was  the  stipulation  that  the  opinion  of  Costa  Rica  should 
not  be  merely  advisory  and  consultative,  but  an  actual  vote, 
when  the  disadvantages  alluded  to  were  such  as  "  to  injure  " 
the  natural  rights  of  Costa  Rica. 

Natural  rights,  disadvantages,  injury,  necessity  of  consul- 
tation, the  right  of  veto,  if  such  can  be  said,  have  been  ac- 
knowledged ;  and  all  of  this  means  that  Costa  Rica  has  a 
perfect  and  indisputable  right  to  oppose  the  deviation  of  the 
course  of  the  San  Juan  river. 

If  Costa  Rica  has  this  right  when  the  work  to  be  done  re- 
fers exclusively  to  canalization  and  transit,  how  can  it  be 
denied  when  the  work  to  be  done  is  the  radical  one  of  carry- 
ing the  river  elsewhere,  and  depriving  Costa  Rica  of  the 
long  river  front  which  she  now  enjoys  ? 


^  Angel  on  Water-Courses,  chap,  xii,  p .  507. 


Chapter   II. 

WHETHER  MEN-OF-WAR  OR  REVENUE  CUTTERS  OF  COSTA  RICA  CAN  NAVIGATE 
ON  THE  SAN  JUAN  RIVER. 

By  the  necessity  of  system,  and  following  the  plan  initiated, 
I  must  now  pass  to  occupy  myself  with  question  No.  8,  pro- 
pounded by  Nicaragua. 

This  question  reads  as  follows : 

''Eight. 

"  If  Costa  Eica,  who,  according  to  Article  VI  of  the  treaty, 
has  only  the  right  of  free  navigation  for  the  purposes  of  com- 
merce in  the  waters  of  the  San  Juan  river,  can  also  navigate 
with  men-of-war  or  revenue  cutters  in  the  same  waters  ?  " 

In  order  that  the  language  be  precise,  and  that  the  mean- 
ing of  the  compact  should  not  be  modified  by  the  introduc- 
tion of  a  word,  I  must  begin  by  calling  the  attention  of  the 
arbitrator  to  the  fact  that  the  word  only  which  occurs  in  the 
question  does  not  occur  in  Article  VI  of  the  treaty  of  limits. 

That  article  simply  reads  in  this  way : 

"  But  the  Eepublic  of  Costa  Eica  shall  have  in  the  said 
waters  the  perpetual  rights  of  navigation,  from  the  above 
said  mouth  up  to  a  point  three  English  miles  distant  from 
Castillo  Viejo,  for  the  purposes  of  commerce,  either  with  Nic- 
aragua or  with  the  interior  of  Costa  Eica,"  &c. 

Does  this  mean  that  Costa  Eica  cannot  under  any  circum- 
stances navigate  with  public  vessels  in  the  said  waters, 
whether  the  said  vessel  is  properly  a  man-of-war,  or  simply 
a  revenue  cutter,  or  any  other  vessel  intended  to  prevent 
smuggling,  or  to  carry  orders  to  the  authorities  of  the  border- 
ing districts,  or  for  any  other  purpose  not  exactly  within  the 
meaning  of  transportation  of  merchandise  ? 

The  answer  seems  to  be  very  simple,  especially  when  the 


156 

fact  is  taken  into  consideration  that,  under  no  circumstances 
whatever,  even  in  case  of  war,  acts  of  hostihty  can  be  done 
by  either  of  the  two  Eepublics  against  the  other  in  the 
waters  of  the  river,  or  of  the  Lake  of  Nicaragua,  or  the  Bay 
of  San  Juan. 

It  seems  to  be  beyond  discussion  that  Costa  Eica  can  navi- 
gate in  the  San  Juan  river  with  public  vessels,  which  are  not 
properly  men-of-war. 

It  was  stipulated  in  the  treaty,  to  the  benefit  of  Nicaragua, 
that  Nicaraguan  vessels  could  bring  their  cargoes  to  the 
Costa  Eican  bank  of  the  river  and  unload  them  there  ;  and 
this  permission,  or  right,  presupposes,  necessarily,  the  cor- 
relative right  of  Costa  Eica  to  watch  its  own  banks  by  the 
only  practicable  means,  which  is  the  revenue  police,  during 
the  whole  course  of  the  river  navigable  for  Costa  Eica. 

If  this  only  means  of  vigilance  would  not  be  permitted,  the 
Costa  Eican  commerce  would  be  deprived  of  protection  and 
at  the  mercy  of  smuggling. 

Within  the  meaning  of  the  words,  commercial  navigation, 
both  the  revenue  police,  the  carrying  of  the  mails,  and  all 
other  public  services  of  the  same  kind  are  necessarily  in- 
cluded. 

In  regard  to  men-of-war,  there  is  no  reason  why  they  can- 
not be  admitted  upon  the  waters  of  the  San  Juan  river. 

Carlos  Calvo,  in  his  work  already  cited.  Book  lY,  §  230, 
says  the  following  :  *  *  *  "In  principle,  a  port  of  free 
entry  is  considered  tacitly  as  one  accessible  to  the  men-of- 
war  of  all  nations,  and,  unless  stipulated  to  the  contrary,  the 
free  access  granted  to  all  merchant  vessels  is  extended  to  war 
vessels  of  the  friendly  nations.  This  is  a  point  upon  which 
all  writers  of  public  law  fully  agree." 

By  analogy,  this  doctrine  can  be  perfectly  well  applied  to 
the  navigable  rivers  ;  and  if  aU  the  friendly  nations  have  the 
right  to  navigate  with  men-of-war  in  the  large  rivers,  why 
can  the  right  of  Costa  Eica  to  do  the  same  thing  on  the  San 
Juan  river  be  disputed  by  Nicaragua,  who  is  separated  from 


157 

her  only  by  the  river  ?  How  can  that  right  be  disputed 
when  the  fact  is  taken  into  consideration  that  before  the 
treaty  of  1858  Costa  Kica  was  co-owner  of  the  San  Juan 
river,  and  that  by  the  treaty  itself  Costa  Rica  reserved  for 
herself  the  perpetual  right  of  navigation  in  the  same  river, 
and  that,  in  fine,  the  compact  does  not  read  that  Costa  Eica 
has  the  said  right  of  navigation  only  for  purposes  of  com- 
merce, and  for  no  other  ? 

And  if  the  limitation  of  the  rights  of  Costa  Rica  is  to 
be  derived  from  the  alleged  fact  that  the  treaty  only  men- 
tions commercial  purposes,  such  an  argument  could  be  met 
at  once  with  the  assertion  that  the  maxim,  qui  dicit  de 
uno  negat  de  altero^  is  only  applicable  when  the  thing  affirmed 
excludes  the.  other,  which  does  not  happen  in  this  case. 

Even  in  those  very  rare  instances  in  which  the  navigation 
with  vessels  of  war  is  forbidden,  as  it  happens  in  the  Darda- 
nelles, the  prohibition  has  not  been  made  except  by  specia 
convention,  in  the  absence  of  which  it  would  be  difficult  for 
the  Porte  to  close  the  Dardanelles  or  the  Bosphorus  against 
vessels  of  war. 

Something  similar  to  this  happens  in  the  Black  Sea.  By 
the  treaty  of  Paris,  of  March  30,  1856,  the  neutrality  of  the 
Black  Sea  was  declared  exactly  in  the  same  way  as  the  neu- 
trality of  the  San  Juan  river,  the  port  of  San  Juan,  and  the 
Lake  of  Nicaragua,  as  far  at  least  as  Nicaragua  and  Costa 
Rica  are  respectively  concerned,  was  declared  by  the  treaty 
of  San  Jos^,  of  April  15,  1858.  It  was  also  declared  in 
the  former  treaty  that  the  Black  Sea  was  open  to  the  com- 
merce of  the  world,  and  so  are  also  the  waters  of  the  river, 
port,  and  lake  above  mentioned,  at  least  for  the  two  Re- 
publics. 

The  treaty  of  Paris  forbade  "  formally  and  perpetually  that 
vessels  of  war,  whether  of  the  bordering  nations,  or  of  any 
other  whatsoever,  should  navigate  in  the  Black  Sea."  But 
soon  the  necessity  was  recognized  of  establishing  there  some 
force  to  do  the  shore  service  ;  and  the  same  treaty  provided 


158 

the  manner  in  which  Russia  and  Turkey  should  enter  into 
some  agreement  in  regard  to  this  point. 

As  it  is  known,  there  are  now  in  those  waters  a  certain 
number  of  steamers  of  no  more  than  800  tons  burden,  and 
some  saiHng  vessels  of  certain  dimensions  agreed  upon  by 
both  parties ;  but  all  of  them  men-of-war  and  belonging  to 
the  two  nations.  ^ 

As  remarked  by  Dr.  Wharton,  in  his  Digest,  in  reference  to 
the  work  of  Fauchille  (Blocus  Maritime,  Paris,  1882),  one 
thing  is  the  neutrality  of  certain  waters,  and  the  prohibition 
for  the  nations  who  so  stipulated  it  to  commit  hostilities 
against  each  other  in  the  said  waters,  and  another,  and  a  very 
different  thing,  is  to  navigate  in  those  waters  with  vessels  of 
war. 

So  it  is  that  Costa  Rica  and  Nicaragua  cannot  wage  war 
against  each  other  in  the  San  Juan  river,  but,  nevertheless, 
they  can  navigate  with  men-of-war  in  the  waters  thereof. 

And  certainly  Nicaragua  is,  perhaps,  the. nation  who  has 
proclaimed  most  loudly  the  distinction  above  referred  to. 
She  has  concluded  several  treaties  with  different  European 
nations,  and  has  stipulated  in  them  that  the  waters  of  the 
interoceanic  canal,  the  waters  of  the  San  Juan  river  being 
included  in  them  (if  the  canal  is  ever  built)  shall  be  neutral ; 
but,  nevertheless,  she  has  permitted  the  said  nations  to  navi- 
gate the  said  canal  with  vessels  of  war,  and  to  station  there 
armed  forces  for  the  purpose  of  protecting  commerce  and 
the  interests  of  the  foreign  citizens  or  subjects  of  the  con- 
tracting nations  which  might  be  in  danger.  > 

So  it  was  stipulated  with  France,  by  Article  IX  of  the 
treaty  of  the  11th  of  April,  1859  ;  with  Great  Britain,  in  Arti- 
cle XXII  of  the  treaty  of  February  11,  1860  ;  and  with  the 
United  States  of  America,  by  Article  XXI  of  the  treaty  of 
June  21,  1867. 


^  Woolsey,  §  61. 

Dr.  Wharton's  Digest,  chap,  ii,  §  40,  p.  169. 


159 

Costa  Kica  might  claim  the  same  privilege  granted  to  the 
three  above-named  nations,  because,  under  Article  lY  of  the 
treaty  of  August  14,  1868,  between  Nicaragua  and  Costa 
Eica,  it  was  provided  that  everything  granted  to  any  nation 
whatsoever  by  either  contracting  party  must  be  at  once  un- 
derstood to  be  common  to  the  other.  This  stipulation  would 
give  Costa  Rica  the  right  to  place  on  the  waters  of  the  San 
Juan  river,  in  the  event  foreseen,  and  for  the  purposes  had 
in  view  by  these  treaties,  all  kinds  of  men-of-war. 

But  there  is,  after  all,  a  fundamental  consideration  which  is 
perplexing,  not,  certainly,  on  account  of  the  decision  to  be 
given  to  the  point  in  question,  but  owing  to  the  difficulty  of 
understanding  how  the  Government  of  Nicaragua  could  ever 
consider  this  point  of  the  treaty  of  limits  of  1858  to  be 
doubtful  and  admit  of  different  interpretations. 

All  that  I  have  said  in  this  portion  of  my  work  in  explana- 
tion of  the  facts  and  law  which  relate  to  the  subject  might 
be  erroneous,  badly  brought,  irrelevant,  and  absolutely  inad- 
missible on  general  principles,  and,  nevertheless,  it  would  be 
true  that  Costa  Rica  can  navigate  with  men-of-war  and  other 
Government  vessels  on  the  waters  of  the  San  Juan  river.  It 
is  Nicaragua  herself  who  has  solemnly  granted  that  right  by 
an  article  of  that  very  same  treaty  which  she  alleges  to  be 
doubtful  or  capable  of  different  interpretation. 

"  Costa  Rica  shall  also  be  bound,"  says  the  second  part  of 
Article  IV  of  the  treaty,  "  owing  to  the  portion  of  the  right 
bank  of  the  San  Juan  river,  which  belongs  to  it,  *  *  * 
to  co-operate  in  its  custody ;  and  the  two  Republics  shall 
equally  concur  in  its  defence  in  case  of  foreign  aggressions  ; 
and  this  will  be  done  by  them  with  aU  the  efficiency  that  may 
be  within  their  reach." 

It  can  be  seen  by  these  phrases,  as  plainly  and  transpar- 
ently as  they  can  be,  that  Costa  Rica  has  not  only  the  right 
but  the  duty,  or  to  follow  exactly  the  language  of  the  treaty, 
the  "  obligation,"  not  only  of  watching,  guarding,  and  de- 
fending its  own  river  bank,  but  of  contributing  to  the  custody 
and  defence  of  the  other  bank  belonging  to  Nicaragua. 


160 

If  that  duty  sliould  not  be  complied  with  with  all  the  effi- 
ciency within  the  reach  of  Costa  Rica,  the  latter  nation  would 
violate  an  obligation  contracted  in  a  solemn  treaty,  and  Nic- 
aragua might  prefer  against  Costa  Rica  a  well-grounded 
charge.  And  if  this  is  the  case,  how  can  it  be  possible  for 
Nicaragua  to  suppose  that  Costa  Rica  has  no  authority  to 
navigate  in  the  said  river  with  Government  vessels  to  be  used 
in  the  police  service  of  the  locality,  and  in  the  custody  of  the 
two  banks,  and  with  regular  men-of-war  to  be  used  in  the  de- 
fence, as  efficient  as  possible,  of  the  same  banks  in  case  of 
foreign  aggressions? 

No  one  can  accomplish  a  purpose,  unless  he  has  the  means 
to  do  it;  and  it  would  be  against  logic  and. reason  to  impose 
upon,  either  a  man  or  a  government,  the  duty  of  guarding 
and  defending  a  place,  and  at  the  same  time  deprive  the  one 
or  the  other  of  the  right  of. arming  or  preparing  themselves 
for  resisting  in  the  proper  manner  the  aggression  foreseen. 

"  The  right  to  a  thing,"  says  Wheaton,  "  gives  also  the 
right  to  the  means  without  which  that  thing  cannot  be  used." 
(Part  III,  chap.  IV,  §  18).  "  This  is  founded  on  natural  rea- 
son, is  accredited  by  the  common  opinion  of  mankind,  and  is 
declared  by  the  writers." 

Let  it  not  be  said  that  the  authority  to  navigate  with 
men-of-war  is  only  confined  to  the  special  case  of  foreign 
aggression.  The  treaty  does  not  refer  to  this  case  exclusively, 
but  speaks  also  of  guard  or  custody,  which  means  watching, 
vigilance,  and  other  things  of  permanent  character  and  nec- 
essarily previous  to  actual  defence.  This,  especially  in  a  river, 
cannot  be  improvised  at  the  very  same  instant  that  trouble 
arises  ;  since,  in  order  that  it  may  be  possible  and  efficient,  a 
perfect  knowledge  of  the  locality,  which  cannot  be  acquired 
except  by  navigating  the  same  river,  is  absolutely  indispen- 
sable. 

Much  more  so  when  it  is  well  known  that  the  navigation 
of  the  San  Juan  river  encounters  many  obstacles,  not  only 
on  account  of  its  shallowness  at  certain  places,  but  also  owing 


.      161  _ 

to  its  rapids  and  other  dangers.  The  defence  of  a  river  of 
this  kind,  without  practical  knowledge  of  all  its  peculiarities, 
rather  than  defence  would  be  a  sure  surrender  to  the  enemy 
of  the  elements  brought  into  action  to  oppose  it. 

Let  it  not  be  claimed  either  that  Costa  Rica  is  relieved 
from  the  duty  assumed  by  her  of  guarding  and  defending  the 
river,  nor  that  such  duty  has  ceased  or  been  abridged  through 
the  fact  that  Nicaragua  denies  to  her  the  right  to  navigate 
said  river  with  men-of-war ;  because  the  navigation  of  the 
San  Juan  river,  which  is  the  boundary  between  Costa  Rica 
and  Nicaragua,  and  is  a  boundary  open  and  accessible  to 
invasions  by  all  kinds  of  enemies,  was  mentioned  in  the 
treaty,  not  simply  for  the  benefit  of  Nicaragua,  and  as  an  ob- 
ligation on  the  part  of  Costa  Rica,  but  because  it  involves 
also  a  sacred  right  of  the  most  vital  importance  for  its  safety 
and  preservation. 
11 


Chapter  III. 

WHETHER  COSTA  RICA  IS  BOUND  TO  CO-OPERATE  IN  THE  PRESERVATION 
AND  IMPROVEMENT  OF  THE  SAN  JUAN  RIVER  AND  THE  BAY  OF  SAN  JUAN, 
AND  IN  WHAT  MANNER  ;  AND  WHETHER  NICARAGUA  CAN  UNDERTAKE  ANY 
WORK  WITHOUT  CONSIDERING  THE  INJURY  WHICH  MAY  RESULT  TO  COSTA 
RICA. 

A  NEW  group  of  questions  comes  now,  consisting  of  those 
which  in  the  list  of  Nicaragua  are  marked  Nos.  4,  5  and  6, 
and  read  as  follows  : 

"  4.  Nicaragua  consented,  by  Article  IV,  that  the  Bay  of 
San  Juan,  w^hich  always  exclusively  belonged  to  her  and  over 
which  she  exercised  exclusive  jurisdiction,  should  be  common 
to  both  Republics  ;  and  by  Article  VI  she  consented,  also, 
that  Costa  Rica  should  have,  in  the  waters  of  the  river,  from 
its  mouth  on  the  x4.tlantic  up  to  three  English  miles  before 
reaching  Castillo  Viejo,  the  perpetual  right  of  free  navigation 
for  purposes  of  commerce.  Is  Costa  Rica  bound  to  concur 
with  Nicaragua  in  the  expense  necessary  to  prevent  the  Bay 
from  being  obstructed,  to  keep  the  navigation  of  the  river 
and  port  free  and  unembarrassed,  and  to  improve  it  for  the 
common  benefit  ?     If  so — 

"5.  In  what  proportion  must  Costa  Rica  contribute  ?  In 
case  she  has  to  contribute  nothing — 

"  6.  Can  Costa  Rica  prevent  Nicaragua  from  executing,  at 
her  own  expense,  the  works  of  improvement  ?  Or,  shall  she 
have  any  right  to  demand  indemnification  for  the  places  be- 
longing to  her  on  the  right  bank,  which  may  be  necessary  to 
occupy,  or  for  the  lands  on  the  same  bank  which  may  be 
flooded  or  damaged  in  any  other  way  in  consequence  of  the 
said  works  ?" 

Denying  the  historical  truth  of  the  statements  made  in 
the  preamble  of  question  No.  4,  and  the  first  of  this  group, 


163 

and  referring  to  those  chapters  of  the  first  part  of  this  argu- 
ment, wherein  I  showed  that  Costa  Kica  had  eminent  domain 
and  sovereignty  on  the  waters  of  the  San  Juan  river  pre- 
vious to  the  treaty  of  1858,  and  taking  only  into  considera- 
tion the  particular  point  of  the  inquiry,  I  think  that  it  is 
necessary  before  all  to  distinguish  carefully  what  the  treaty 
itself  has  taken  pains  to  distinguish. 

The  right  of  Costa  Rica  on  the  Bay  of  San  Juan  is  a  right 
of  sovereignty  which  she  exercises  jointly  and  in  common 
with  Nicaragua ;  and  the  right  of  Costa  Rica  in  the  San  Juan 
river,  from  the  mouth  thereof  on  the  Atlantic,  to  the  point 
three  miles  from  Castillo  Viejo,  which  has  been  fixed,  is  the 
right  of  use  and  navigation.  In  the  former  case  Costa  Rica 
is  joint  owner  ;  in  the  latter,  Costa  Rica  is  simply  the  cestuy 
que  2ise  ;  it  being  expressly  stipulated  by  Article  YI  that  the 
Republic  of  Nicaragua  shall  have  exclusively  the  eminent 
domain  and  sovereignty  over  the  waters  of  the  San  Juan  river 
from  its  rise  in  the  lake  to  its  mouth  on  the  Atlantic. 

It  is,  therefore,  plain  that  the  answer  to  be  given  to  the 
interrogatories  of  Nicaragua  depends  entirely  upon  the  legal 
status  in  which  Costa  Rica  finds  herself,  of  joint  owner  in 
the  one  case,  and  of  cestuy  que  use  in  the  other. 

It  might  be  remarked  with  justice  that  the  three  questions 
of  this  group  should  be  thoroughly  eliminated  from  the  pres- 
ent discussion  because  this  refers  only  to  those  points  of  the 
treaty  of  1858  which  Nicaragua  considers  to  be  doubtful 
and  upon  which  she  desires  to  secure  the  authoritative  and 
enlightened  decision  of  the  Arbitrator,  while  the  points  in- 
volved in  those  questions  have  nothing  to  do  directly  with 
the  treaty  of  limits,  nor  are  they  doubtful,  nor  can  they  be 
considered  other  than  pure  effects  of  casuistry,  the  solution 
of  which  in  reality  should  not  be  given  beforehand. 

It  is  plain,  however,  and  so  it  is  stated  in  the  present  an- 
swer in  order  that  it  may  never  be  said  that  Costa  Rica  has 
evaded  to  make  any  reply,  that  if  the  sovereign  rights  which 
belong  to  Nicaragua  over  the  San  Juan  river  terminate  on 


164 

the  right  bank  thereof,  which  is  the  Costa  Kican,  and  that  if 
her  rights  on  the  river  itself  •  are  limited  to  the  perpetual  use 
or  navigation,  and  to  the  other  riparian  rights  acknowledged 
by  law,  the  duty  to  keep  the  navigation  of  the  said  river  free 
and  unembarrassed,  and  of  contributing  to  the  expenses  for 
that  purpose  incurred,  is  not,  nor  can  it  be,  incumbent  upon 
her. 

It  seems  to  be  in  the  natural  order  of  things  that  the  obli- 
gation to  make  repairs  and  to  keep  the  property  in  the  con- 
dition in  which  it  was  when  the  use  and  possession  thereof 
was  granted  to  another  party,  and  the  duty  to  pay  the  ex- 
penses incurred  thereby,  should  belong  to  the  owner. 

The  Roman  civil  law,  which  in  the  matter  of  rivers  has 
been  generally  adopted  by  all  nations,  as  remarked  by  Hal- 
leck^  and  declared  by  Wheaton,  who  quotes  the  precedent 
established  by  Mr.  Jefferson  in  his  Instruction  to  the  United 
States  Minister  in  Spain,  of  March  18, 1792,  settled  this  ques- 
tion fin  ally  2  and  explicitly. 

The  jus  uteridi  does  not  involve  the  obligation  to  pay  ex- 
penses for  the  preservation  of  the  thing  used,  nor  any  other 
expenses  alluded  to  in  questions  Nos.  4  and  5. 

And  the  right  of  free  navigation  on  a  river  which  belongs 
to  another  power  does  not  imply  either  in  any  way  what- 
ever, no  matter  how  remote,  the  obligation  to  pay  the  ex- 
penses which  the  owner  of  the  said  river  may  be  pleased  to 
,incur  for  its  preservation  and  improvement. 

Easements  are  rights  which  men  have  over  things  belong- 
ing to  others ;  they  are  burdens  weighing  upon  these  things, 
whether  by  the  wiU  of  the  parties,  or  by  the  force  of  circum- 
stances, and  certainly  it  would  be  to  disturb  the  order  of  law 
to  demand  from  the  possessor  of  the  easement  that  he  shoidd 
assist  the  owner  in  paying  the  expenses  required  in  the 
preservation  and  improvement  of  the  property. 


'  Chapter  VI,  §  27. 

'  Wheaton,  by  Lavrrence.     Part  II,  Chap.  IV,  §  18. 


165 

Nothing  would  be  easier  than  multiplying  quotations 
from  the  Pandects,  and  from  the  Institutes  of  Justinian,  in 
support  of  this  doctrine,  which  is  truly  universal  because 
of  its  wisdom  and  truth;  and  there  is  no  nation  in  the 
civilized  world  that  has  not  embodied  it  in  its  laws. 

In  Central  America,  as  in  England  and  the  United  States 
and  everywhere  else,  the  obligations  which  refer  to  the 
ownership  are  incumbent  upon  the  owner ;  and  the  cestuy 
que  use,  or  the  possessor  of  any  easement  whatsoever,  is  not 
called  to  share  those  burdens  unless  by  agreement  especially 
entered  into  by  him. 

The  civil  law  of  Spain,  which,  until  very  recently,  consti- 
tuted the  fundamental  basis  of  the  Nicaraguan  law,  as  well  as 
that  of  Costa  Rica,  has  expressly  declared  this  principle. 

"  But  the  one  who  has  only  the  right  of  use  over  a  thing," 
says  King  Don  Alfonso  the  Wise,  "  as  was  stated  in  the  pre- 
ceding law,  is  not  bound  to  do  any  of  the  aforesaid  things  in 
the  property  over  which  he  has  that  use."i 

Those  things  before  said  are,  as  it  can  be  seen  by  perus- 
ing the  said  law,  "  to  guard,  preserve,  repair,  and  improve  " 
the  property. 

If  the  interpretation  of  the  legal  precept  were  different, 
the  most  lamentable  confusion  of  things  fundamentally  dif- 
ferent by  their  own  nature,  as  are  the  rights  of  ownership 
and  use,  would  take  place.  The  former  represents  the  pleni- 
tude of  power,  while  the  latter  only  represents  restrictions 
or  emanations  thereof. 

In  reference  to  the  Bay  of  San  Juan,  over  which  the  rights 
of  Costa  Bica  are  sovereign,  it  seems  to  be  unnecessary  to 
state  that  the  limitation  or  abridgment  of  the  said  rights 
cannot  take  place,  whether  directly  or  indirectly,  except  by 
an  act  of  the  will  of  Costa  Bica,  and  with  her  consent. 

The  history  of  bordering  nations,  joint  sovereigns  of 
streams,  straits,  and  bays,  presents  numerous  cases  fixing 


Law  XXII,  Title  31,  Partida  III. 


166 

the  rule  to  be  observed  when  some  work  is  to  be  done  or 
certain  measures  to  be  taken  for  the  preservation  or  improve- 
ment thereof. 

What  has  been  done  in  those  cases  was  always  done  by 
the  will  of  interested  parties,  by  means  of  treaties,  and  spec- 
ially having  in  sight  the  concrete  fact,  the  project  of  the  work 
or  improvement,  its  plans,  the  estimate  of  its  expense,  and 
everything  else  necessary  to  give  a  complete  idea  of  the  sub- 
ject under  consideration.  It  is  in  this  way,  and  in  no  other, 
that  both  Costa  E-ica  and  Nicaragua  have  to  act  in  regard  to 
the  Bay  of  San  Juan  ;  and  Costa  Rica  has  to  reserve  for  it- 
self its  freedom  of  action  until  seeing  practically  and  con- 
cretely what  is  intended  to  be  done  to  improve  that  Bay  and 
prevent  it  from  being  obstructed,  and  before  that  she  cannot 
bind  herself  or  contract  engagements  for  the  future,  upon 
mere  general  propositions,  or  academical  themes,  more  prop- 
erly to  be  discussed  in  the  law  school  than  in  an  international 
arbitration. 

If,  in  the  opinion  of  both  Republics,  some  work  is  to  be 
done,  and  the  particulars  of  the  work  are  given  in  such  a 
way  as  is  proper  for  all  public  works,  then  it  is  through  an 
agreement  or  a  formal  treaty,  concluded  in  accordance  with 
the  respective  Constitutions  of  the  two  countries,  that  the 
said  work  must  be  undertaken  and  carried  into  effect.  The 
mutual  interests  of  the  two  parties  would  be  sufficient  to 
facilitate  the  enterprise. 

On  the  other  hand,  Nicaragua  and  Costa  Rica  find  them- 
selves in  regard  to  this  point  exactly  in  the  same  position. 
Both  are  joint  owners  of  the  Bay,  and  either  of  them,  when 
considering  it  necessary  for  their  mutual  interests  to  under- 
take a  work  for  preservation  or  improvement,  must  submit 
the  project  to  the  other. 

If  the  scientific  studies  required  for  the  work,  made  by 
agreement  of  both  parties,  lead  to  a  decision  in  favor  of  the 
advisability  or  necessity  of  the  said  work,  the  latter  could 
be  undertaken  either  at  the  expense  of  the  two  parties,  in 


167 

equal  proportion,  if  both  of  them  were  benefited  thereby 
equally  and  without  delay,  or  on  account  of  whichever  party 
was  in  need  of  it,  subject  to  indemnification  by  the  other 
party  whenever  it  should  be  willing  to  avail  itself  of  the  im- 
provement. Such  is  the  doctrine  of  equity,  and  the  one 
which  universally  rules  in  matters  of  joint  ownership. 

Referring  now  to  Interrogatory  No.  6,  I  shall  state  posi- 
tively that  Costa  Rica  has  the  right  to  prevent  Nicaragua 
from  executing,  at  her  own  cost,  the  works  to  which  she  al- 
ludes, whenever  undertaken  without  consideration  of  the 
rights  which  belong  to  Costa  Rica,  whether  as  cestuy  que  use 
of  the  river,  or  as  joint  owner  of  the  Bay,  or  exclusive  sov- 
ereign of  the  right  bank  of  the  San  Juan  river,  and  of  the 
whole  of  the  Colorado  river,  or  of  the  other  lands  and  waters 
of  her  territory. 

Costa  Rica  can,  therefore,  prevent  any  place  on  the  river 
bank  which  belongs  to  her  from  being  occupied.  And  to  pre- 
vent one  thing  from  being  done  is  something  more  than  asking 
indemnification  for  the  occupation  and  for  the  damages  done 
in  consequence  thereof,  whether  through  the  flooding  of  the 
lands,  or  by  destruction  of  the  river  front,  or  for  any  other 
reason. 

Nicaragua  cannot  do  any  work  either  on  the  river  or  bay, 
whether  for  the  improvement  or  for  the  preservation  of  the 
same,  without  first  giving  notice  to  Costa  Rica  and  obtaining 
her  consent.  And  as  Costa  Rica  has  the  perpetual  right  of 
free  navigation  in  the  river,  everything  which  may  endanger 
or  injure  or  modify  or  abridge  that  right  is  to  be  considered 
as  an  attack  upon  her  property.  Sic  utere  tuum  ut  alienum 
71071  ledas  Costa  Rica  will  always  say  and  repeat  to  her  sister 
and  neighbor,  Nicaragua.  "  Do  not  touch  the  river  which  is 
of  common  possession,  nor  the  Bay  over  which  the  two  par- 
ties are  sovereign,  without  previous  deliberation  and  agree- 
ment upon  the  full  knowledge  of  the  nature  of  the  work  to 
be  accomplished." 

In  regard  to  the  occupation  of  any  part  of  the  Costa  Rican 


168 

territory,  because  it  may  be  deemed  necessary  for  tbe  work 
of  improvement,  scarcely  can  it  be  understood  how  the  idea 
that  such  a  thing  is  possible  has  occurred  to  any  mind.  It 
is  true  that  a  sovereign  can,  by  virtue  of  his  eminent  domain, 
appropriate  for  public  use  and  for  reason  of  public  utility, 
within  his  own  dominions,  and  subject  to  indemnify  the 
owners,  such  property  as  may  be  required.  But  when  or 
where  has  the  doctrine  been  establised  that  such  a  power  can 
be  exercised  extra-territorially  ? 

Who  gives  authority  to  a  sovereign,  no  matter  how  absolute 
he  may  be  within  his  own  dominions,  to  appropriate  for  pub- 
lic use  any  property  situated  within  the  limits  of  the  neigh- 
boring sovereign  ? 

The  limit  of  the  jurisdiction  of  Nicaragua  is  fixed  by  the 
line  which  runs  along  the  right  bank  of  the  San  Juan  river, 
and  from  there  to  the  interior  of  Costa  Rica  the  land  is  in- 
violable for  Nicaragua. 

If,  in  consequence  of  some  work  surreptitiously  done  on  the 
river  or  port,  without  the  consent  of  Costa  Rica,  it  should 
happen  that  some  lands  become  inundated,  whether  abso- 
lutely or  temporarily,  or  that  the  river-bed  becomes  dry  and 
Costa  Rica  is  deprived  of  her  river  front,  the  right  of  Costa 
Rica,  to  demand  the  restoration  of  everything  to  the  same 
condition  in  which  it  was  before,  and,  furthermore,  the  proper 
indemnification  for  damages,  does  not  admit  of  contradiction. 


Chapter    IY. 

WHICH  IS  THE  CENTRE  OF  THE  SALINAS  BAY? — IS  COSTA  RICA  A  PARTY  TO 
THE  GRANTS  OF  INTEROCEANIC  CANAL  WHICH  NICARAGUA  MIGHT  MAKE  ? 
WHAT  ARE,  IN  THIS  RESPECT,  THE  RIGHTS  OF  COSTA  RICA  1 

The  fourth  group  of  questions,  or  doubtful  points,  pro- 
pounded by  Nicaragua  embraces  the  interrogatories  marked 
Nos.  2  and  3. 

They  read  as  follows  : 

"2.  How  shall  the  central  point  of  the  Salinas  Bay,  which 
is  the  other  end  of  the  dividing  line,  be  fixed  ? 

"  3.  Whether  by  that  central  point  we  are  to  understand 
the  centre  of  the  figure  ;  and,  as  it  is  necessary  for  its  deter- 
mination to  fix  the  limit  of  the  Bay  towards  the  ocean,  what 
shall  that  limit  be  ?  " 

True  it  is  that  Article  II  of  the  treaty  of  1858  stipulates 
that  the  boundary  towards  the  Pacific  Ocean  should  be 
marked  by  drawing  "  an  astronomical  line  "  from  the  point 
therein  named  "  to  the  central  point  of  the  Salinas  Bay  in  the 
Southern  Sea."  But  also  it  is  true  that  nothing  can  be  simpler 
than  rightly  construing  these  words. 

The  central  point  of  the  Salinas  Bay,  which,  like  the  Bay 
of  San  Juan,  belongs  to  the  two  Republics  jointly  and  in 
common,  as  far  as  domain  and  sovereignty  are  concerned 
(Art.  IY),  cannot  be  more  than  one,  especially  when  it  is  to  be 
fixed  by  merely  drawing  a  line,  and,  much  more,  an  astronom- 
ical or  air-line,  regardless  of  valleys,  mountains,  or  any  other 
obstacles  of  any  kind.  That  centre,  the  only  one  possible, 
has  to  be  the  geometrical  centre,  the  one  in  which  all  the 
lines  dividing  the  Bay  into  two  equal  parts  cross  each  other. 
The  place  where  this  happens  shall  be  the  extremity  of  the 
boundary  between  the  two  countries. 

This  question,  rather  geographical  and  geometrical  than  of 


170 

international  law,  is  extremely  easy  to  decide.  To  determine 
the  figure  of  the  Bay  there  is  no  necessity  to  go  beyond  its 
limits  and  enter  the  ocean.  It  is  enough  to  draw  a  line  which, 
uniting  the  most  protruding  capes  of  its  mouth,  should,  as  it 
might  be  said,  close  it  entirely ;  and  then  nothing  would  be 
easier  and  simpler  than  finding  the  centre  of  the  polygon,  no 
matter  how  irregular,  in  this  way  obtained. 

And  to  do  so,  and  do  it  well,  no  survey  is  now  needed,  be- 
cause the  United  States  of  America  have  just  published  an 
excellent  map  of  the  Salinas  Bay  which  renders  the  opera- 
tion extremely  simple.  This  map  is  the  one  published  under 
the  title,  "  Central  America  :  West  Coast  of  Nicaragua  ;  Sa- 
linas Bay  ;  from  a  survey  in  1885  by  the  officers  of  the  U.  S. 
S.  Banger,  Commander  C.  E.  Clark,  U.  S.  N.,  comdg." 

The  two  questions  herein  referred  to  can  have  only  one 
answer,  and  that  is  that  the  astronomical  line,  spoken  of  by 
the  treaty,  shall  end  at  the  geometrical  centre  of  the  figure,  that 
is,  at  the  point  in  which  the  greater  and  lesser  axes  cross  each 
other  ;  and  that  the  waters  of  the  Bay,  although  divided  into 
two  equal  parts  by  the  astronomical  line,  and  its  prolonga- 
tion towards  the  ocean,  are  common  to  the  two  Kepublics. 

Now,  it  is  time  to  refer  to  the  last  group  of  questions,  which 
is  the  fifth,  and  embraces  the  tenth  and  eleventh  interroga- 
tories of  Nicaragua.  The  language  of  these  questions  is  as 
follows  : 

"  10.  If  considering  that  the  reasons  of  the  stipulation  con- 
tained in  Article  VIII  of  the  treaty  have  disappeared,  does 
Nicaragua,  nevertheless,  remain  bound  not  to  make  any  grants 
for  canal  purposes  across  her  territory  without  first  asking 
the  opinion  of  Costa  Eica,  as  therein  provided  ?  Which  are, 
in  this  respect,  the  natural  rights  of  Costa  Kica  alluded  to 
by  this  stipulation,  and  in  what  cases  must  they  be  deemed 
injured  ? 

"  11.  Whether  the  treaty  of  April  15, 1858,  gives  Costa  Rica 
any  right  to  be  a  party  to  the  grants  of  interoceanic  canal 
which  Nicaragua  may  make,  or  to  share  the  profits  that  Nic- 


171 

aragua  should  reserve  for  herself  as  sovereign  of  the  territory 
and  waters,  and  in  compensation  of  the  valuable  favors  and 
privileges  she  may  have  conceded  ?  " 

Whatever  answer  may  be  given  to  these  questions  must 
necessarily  be  prefaced  by  the  statement  that  the  stipulation 
contained  in  Article  YIII  of  the  treaty  of  limits  does 
not  explain  the  reasons,  or  causes,  which  induced  the  two 
nations  to  enter  into  it,  of  which  the  Goverment  of  Nicara- 
gua has  spoken  in  the  preamble  which  it  was  willing  to 
make  to  this  interrogatory,  and  which  the  said  Government 
says  to  have  now  disappeared  ;  nor  does  it  either  allude  to 
them  even  in  the  most  indirect  manner. 

Article  VIII  reads  as  follows  : 

"  Art.  VIII.  If  the  contracts  of  canalization,  or  transit,  made 
by  the  Government  of  Nicaragua,  before  its  having  been  given 
notice  of  the  present  agreement,  should  by  any  reason  what- 
ever become  invalidated,  Nicaragua  binds  herself  not  to  en- 
ter into  any  other  contract  for  the  aforesaid  purposes  with- 
out first  hearing  the  opinion  of  the  Government  of  Costa 
Rica  as  to  the  disadvantages  that  the  transaction  might  pro- 
duce for  the  two  countries,  provided  that  the  said  opinion  be 
given  within  thirty  days  after  the  receipt  of  the  communica- 
tion asking  for  it,  if  Nicaragua  stated  that  the  decision  was 
urgent ;  and  if  the  natural  rights  of  Costa  Rica  are  not  in- 
jured, then  the  vote  of  Costa  Rica  shall  be  only  advisory." 

In  other  words,  if  the  contracts  which  were  made  before 
the  treaty  of  limits  of  April  15,  1858,  became  law,  were  in 
in  force,  then  Costa  Rica  would  have  to  submit  to  the  accom- 
plished fact,  and  respect  in  silence  the  stipulations  made 
without  its  consent.  But  if  for  any  reason  whatever  those 
contracts  became  invalidated,  or  inoperative,  Nicaragua  can- 
not enter  into  any  new  ones  without  first  asking  Costa  Rica 
for  its  opinion,  not  only  for  the  reason  that  its  "  natural  rights  " 
might  be  affected  by  the  transaction,  but  also  on  account  of 
the  "  disadvantages  "  which  the  transaction  might  produce  for 
the  two  countries,  that  is,  for  Costa  Rica  and  also  Nicaragua. 


172 

And  if  it  were  urgently  necessary  that  Costa  Rica  should  give 
its  opinion,  then  the  opinion  should  be  given  within  thirty 
days. 

The  vote,  or  opinion,  of  Costa  Rica  should  be  simply  ad- 
visory when  referring  to  "  disadvantages "  common  to  both 
countries ;  as,  for  instance,  interests  of  race,  language,  religion, 
general  commerce,  &c.;  but  it  will  be  "  resolutive,"  that  is  to 
say,  a  real  vote,  as  it  must  be  necessarily,  when  referring  to  a 
"  transaction  "  which  does  injury,  or  hurts,  or  alters,  or  modi- 
fies, or  annuls,  or  ignores  the  natural  rights  of  Costa  Rica. 

Nothing  is  said  in  this  article,  nor  in  any  others  of  the 
treaty,  in  regard  to  the  causes  which  induced  the  two  coun- 
tries to  enter  into  the  agreement.  Nor  can  it  be  conjectured 
from  the  language  of  the  agreement  itself,  that  the  circum- 
stances under  which  it  was  entered  into  were  transient  and 
capable  of  disappearing,  and  that  they  have  now  disappeared, 
as  it  is  claimed.  Should  it  be  possible  for  me,  in  view  of  the 
absolute  silence  of  Article  VIII,  to  engage  in  such  a  discus- 
sion as  this,  I  should  set  forth  that  the  presumption  is  that 
the  circumstances  under  which  the  treaty  of  1858  was  con- 
cluded were  fundamentally  the  same  as  now  exist. 

Why  was  it  stipulated  that  Costa  Rica  should  be  heard 
before  entering  into  any  new  grants  of  canal,  or  contracts  of 
communication,  or  transit,  and  that  its  vote  or  opinion 
should  be  advisory  when  referring  to  the  "  disadvantages  " 
that  the  transaction  might  produce  for  the  two  countries, 
and  "  resolutive,"  or  a  true  vote,  when  referring  to  matters 
which  might  injure,  or  abridge,  or  ignore  the  "  natural  rights  " 
of  Costa  Rica  ?  Was  it  not  because  the  sovereignty  over  the 
Salinas  Bay,  and  the  Bay  of  San  Juan,  belongs  to  it  jointly, 
or  in  common  with  Nicaragua,  and  because  the  right  bank  of 
the  San  Juan  river  belongs  to  it  exclusively,  and  is  Costa 
Rican  territory  ?  Was  it  not  because  by  virtue  of  these  facts 
of  permanent  character,  and  of  the  perpetual  right  of  use  and 
navigation  in  the  San  Juan  river,  it  was  simply  natural  that 
nothing  could  be  done  capable  of  changing  the  status  of  all 
those  things  without  first  consulting  the  will  of  Costa  Rica  ? 


173 

The  one  who  has  dominion  over  a  bay,  although  his 
sovereignty  may  not  be  exclusive,  but  in  union  with  another 
sovereign,  has  the  right  of  being  heard  and  of  interposing  his 
veto  in  a  matter  upon  which  may  depend  the  changing  of  the 
form  of  the  bay,  or  the  drying  up  of  the  same,  or  making  it 
more  accessible  to  a  foreign  enemy  ;  and  such  a  right  does 
not  depend,  nor  can  it  depend,  upon  circumstances  which 
exist  to-day  and  disappear  to-morrow.  That  right  is  the 
natural  and  legitimate  result  of  complete  dominion  which 
constitutes  sovereignty  and  does  not  need  to  be  stipulated 
or  explained. 

The  same  has  to  be  said  of  the  river  banks  which  corre- 
spond to  Costa  Rica  from  the  mouth  of  the  San  Juan  river 
going  up  to  within  three  miles  of  Castillo  Viejo.  In  regard 
to  whatever  project  of  canalization  or  of  transit  which  might 
affect  the  rights  of  exclusive  sovereignty  which  Costa  Rica 
has  over  that  portion  of  the  right  bank  of  this  river,  which 
may  involve  the  possibility  of  diminishing  the  amount  of  its 
waters  or  of  throwing  them  upon  Costa  Rica,  thereby  flooding 
some  locality,  or  which  might  make  the  defence  of  the  Costa 
Rican  territory  and  the  same  river  more  difficult  and  burden- 
some, which  Costa  Rica  is  obliged  to  defend  "  with  all  the  effi- 
ciency that  might  be  within  her  reach,"  has  necessarily  and 
by  virtue  of  the  same  nature  of  things  to  be  consulted  with 
Costa  Rica.  To  act  otherwise  would  simply  be  to  invade  the 
sovereign  rights  of  that  Republic. 

These  antecedents  being  established,  and  remembering 
that  the  laws  of  interpretation  of  the  treaties  are  the  same  to 
be  observed  in  the  interpretation  of  contracts  between  pri- 
vate parties,!  from  which  it  is  clear  that  there  is  no  neces- 
sity to  search  for  another  meaning  than  that  which  its  own 
words  legitimately  reveal,  and  which  the  legal  necessities 
already  recommended  confirm,  it  will  be  easy  to  answer  the 
two  questions. 


^Woolsey,  §118. 


174 

To  the  first,  which  is  the  one  marked  No.  10,  I  shall  say 
positively  that  Nicaragua  is  bound  not  to  make  any  grants  of 
canal  through  her  territory  without  first  securing  the  consent 
of  Costa  Rica,  in  the  terms,  and  in  the  way,  and  for  the  pur- 
poses, provided  for  in  Article  VIII  of  the  treaty  of  April  15, 
1858,  and  this  not  only  because  the  said  article  is  in  force 
and  has  never  been  repealed  or  modified,  but  because,  even 
in  case  that  the  said  article  should  never  have  been  written, 
the  provisions  thereof  ought  to  be  considered  to  be  in  exist- 
ence as  emanating  from  the  dictates  of  reason  and  law.  In 
other  words.  Article  YIII  of  the  treaty  has  not  created  the 
rights  of  Costa  Rica  and  the  correlative  duties  of  Nicaragua 
in  this  respect ;  but  the  said  rights  and  duties  existed  before- 
hand, and  the  treaty  has  done  nothing  else  than  express 
them. 

Now,  and  in  regard  to  the  additional  question,  "  Which  are, 
in  this  respect,  the  natural  rights  of  Costa  Rica,  alluded  to  by 
this  stipulation,  and  in  what  cases  they  must  be  deemed 
injured  ?  "  I  shall  say,  in  the  first  place,  that  it  is  not  rea- 
sonable to  ask  Costa  Rica  to  formulate  a  complete  catalogue 
of  its  natural  rights  in  regard  to  this  point,  and  to  explain 
beforehand,  through  an  almost  prophetic  effort  of  foresight, 
what  are  the  circumstances  through  which  those  rights  may 
be  injured.  And,  in  the  second  place,  that  those  natural 
rights,  and  those  circumstances  capable  to  injure  them,  can 
be  determined  without  difficulty  when  the  concrete  case 
rendering  the  investigation  necessary  presents  itself. 

It  is  well  known  that  the  natural  rights  of  a  man  or  nation, 
according  to  the  excellent  definition  of  Ahrens,i  are  those 
which  constitute  an  indispensable  condition,  depending  upon 
the  wiU  of  another  man  or  Government  for  the  pr.eservation 
and  development,  whether  material,  moral,  or  intellectual,  of 
the  individual  or  nation  to  which  they  refer. 

That  the  river  bank  of  Costa  Rica  remains  such  as  it  is  ;  that 


^  Philosophie  du  Droit,  chap.  i. 


175 

its  statu  quo  is  not  disturbed  in  consequence  of  a  work  of 
canalization ;  that  Costa  Rica  does  not  become  bounded  by 
a  dried  up  river-bed  instead  of  a  navigable  river,  or  by  a 
stream  insignificant  and  without  sufficient  water  for  the  pur- 
poses of  navigation,  commerce,  and  defence  ;  that  by  a  work 
of  this  kind  a  portion  of  the  Costa  Rican  territory  does  not  be- 
come flooded,  and  that  the  industries  already  created  thereon, 
or  which  might  be  created  in  the  future,  become  ruined, 
and  the  rights  of  the  riparian  owners  nullified  or  ignored  ; 
that  the  "  improvement "  of  the  Bay  of  San  Juan  is  not  such 
as  to  injure  the  rights  and  interests  of  Costa  Bica,  and  in- 
crease the  burdens  of  its  Government  by  rendering  the  duty 
of  defending  it,  which  the  treaty  imposes  upon  her,  much 
more  onerous  or  costly  ;  all  of  this  constitutes  a  natural  right, 
perfect,  demandable,  irrefutable ;  arid  all  that  opposes  the 
full  satisfaction  of  that  right,  or  renders  that  satisfaction 
more  difficult,  is  and  has  to  be  considered  as  wrongful  and 
invasive. 

When  the  practical  case  should  present  itself  no  one 
doubts,  nor  can  it  be  doubted,  that  Costa  Rica  and  Nicaragua 
will  agree  with  each  other,  since  their  rights  are  similar  and 
substantially  the  same. 

The  eleventh  and  last  question  is  nothing  more  than  a 
repetition  of  the  immediately  preceding  one,  to  which  a  kind 
of  preamble  or  antecedent  has  been  attached.  The  answer 
to  be  given  to  it  has  to  be  the  same. 

The  Government  of  Nicaragua  asks  whether  the  treaty 
gives  Costa  Rica  the  right  to  be  a  party  to  the  grants  of  in- 
teroceanic  canal  which  that  Government  may  make,  and  to 
share  the  profits  which  Nicaragua  may  reserve  for  herself  as 
sovereign  and  in  compensation  of  the  valuable  sacrifices 
made  by  her.  And  the  answer  is  that  Costa  Rica  has  indeed 
the  right  to  be  a  party  to  the  grants  of  canal  made  since 
1858,  or  which  may  be  made  in  the  future,  and  that,  further- 
more, that  right  is  affirmed  and  recognized  by  Nicaragua 
herself  in  Article  YIII  of  the  treaty  of  limits. 


176 

As  to  sharing  the  profits  and  determining  whether  those 
which  Nicaragua  might  reserve  for  herself  are  or  are  not, 
must  or  must  not  be,  legitimate  compensation  for  her  sacri- 
fices, these  are  precisely  the  questions  which,  among  others, 
necessarily  require  the  intervention  of  Costa  Rica,  and  ren- 
der the  latter  a  legitimate  party  to  the  grants. 

The  letter  and  the  spirit  of  Article  YIII  clearly  show  that 
everything  in  regard  to  this  point  will  depend  upon  the 
special  circumstances  of  the  case.  If  the  grant  is  of  such  a 
nature  as  to  demand  sacrifices  on  the  part  of  Costa  Rica, 
whether  because  her  sovereign  rights  are  injured  or  because 
other  rights  of  a  different  nature  belonging  to  her  may  suffer 
detriment,  could  ever  Nicaragua  pretend  that  such  sacrifices 
should  be  gratuitous  ?  Could  she  justly  deny  the  right  of 
Costa  Rica  to  share  the  profits  ? 

But  this  question  is  indeed  premature.  To  resolve  it 
properly,  and  even  to  avoid  its  coming  up,  the  two  Govern- 
ments wisely  stipulated  that  Nicaragua  should  not  enter  into 
any  agreement  of  this  kind  without  first  Hstening  to  Costa 
Rica.  Let  this  article  be  comphed  with  according  to  its  letter 
and  spirit,  and  no  difficulty  of  any  kind  will  ever  arise. 


CONCLUSION, 


12 


CONCLUSION. 


I  HEBE  put  an  end  to  this  argument  and  omit  a  general  re- 
capitulation, although  it  might  be  of  some  use,  for  fear  of 
fatiguing  too  much  the  enlightened  and  benevolent  attention 
of  the  Arbitrator. 

The  cause  which  I  have  defended  is  one  of  those  which, 
on  account  of  its  notorious  justice,  needs  no  defence. 

It  was  only  in  consideration  of  that  justice,  I  must  say  so 
once  more  ;  it  was  only  for  the  legitimate  interest  which 
Costa  Rica  has,  and  always  had,  in  securing  respect  and  in- 
violability for  what  has  been  covenanted,  that  she  has  main- 
tained with  firmness  the  validity  of  the  treaty  of  1858.  Not 
by  any  means  because  she  believes  that  the  said  treaty  is 
favorable  to  her.  When  Costa  Rica  adhered  to  that  com- 
pact she  knew  perfectly  well  that  her  ancient  rights  on  the 
San  Juan  river  became  reduced  by  it  to  those  of  simple  use  ; 
she  understood  without  difficulty  that,  in  moving  away  from 
the  shores  of  the  Great  Lake,  she  also  gave  up  her  indisputa- 
ble rights  of  community  in  it  as  a  bordering  State  ;  and, 
therefore,  she  acted  with  the  full  knowledge  that  she  was 
sacrificing  her  rights. 

But  the  Costa  Rican  people,  being  eminently  peaceful  and 
abhorrent  of  having  differences  with  their  neighbors,  thought 
it  better  to  accept  that  settlement  than  to  keep  open  for  a 
longer  time  the  old  question  of  limits  with  Nicaragua — a 
perennial  source  of  trouble  for  both  Republics. 

Exactly  the  same  spirit  now  prevails  in  Costa  Rica,  and 
the  very  same  reasons  which  induced  her  to  act  in  1858, 
cause  her  now  to  maintain  the  validity  of  the  compact  cele- 
brated at  that  time,  although  the  nullification  thereof  should 
produce  the  inevitable  result  of  restoring  the  ancient  frontiers 
of  the  Great  Lake,  the  La  Flor  and  the  San  Juan  rivers. 


180 

Costa  Eica  never  thought  that  the  treaty  of  limits  of  1858 
was  beneficial  to  her,  and,  if  she  shows  herself  earnest  to 
maintain  its  validity,  it  is  only  for  the  sake  of  peace  and 
tranquility,  gifts  which  her  children  always  held  in  high 
esteem,  and  always  considered  preferable  to  the  possession 
of  a  strip  of  land,  when  no  sacrifice  of  national  dignity  was 
required.  Not  once,  nor  twice,  has  the  Costa  Eican  Foreign 
Office  declared,  in  the  most  bitter  part  of  the  struggle,  that 
the  rescission  of  the  treaty  would  be  accepted  by  it,  provided 
that  Nicaragua  should  assume  the  responsibility  of  taking 
the  initiative  step,  by  which  everything  would  be  restored  to 
its  original  condition ;  but  this  proposition  was  not  enter- 
tained in  Nicaragua,  who,  indeed,  confuses  the  mind  with  her 
incomprehensible  conduct,  alleging,  on  the  one  side,  the  nullity 
of  the  convention  of  limits  because  she  feels  herself  injured 
by  it,  while,  on  the  other,  refusing  to  accept  the  rescission  of 
the  compact  when  suggested  to  her. 

The  only  explanation  that  this  fact  admits  of  is  that  the 
present  question  has  been,  for  Nicaragua,  a  matter  of  do- 
mestic politics  rather  than  an  international  affair — an  idea 
which  subsequent  events  have  corroborated,  because  the 
treaty  lately  concluded  at  Managua,  which  put  an  end  to  the 
question,  after  having  obtained  the  general  approval  of  the 
country,  and  in  spite  of  the  support  of  the  Administration 
which  made  it,  was  finally  rejected  through  partisan  interests 
and  influences. 

Those  who  act  in  this  way  do  not  realize  how  much  harm 
they  do  to  the  real  and  fundamental  interests  of  their  own 
country.  They  do  not  understand  that  in  reopening  the  ques- 
tion of  vahdity  or  nullity  of  the  treaty  of  1858,  which  the 
Managua  convention  settled,  the  work  of  the  interoceanic 
canal,  the  exponent  of  Central  American  patriotism,  to  which 
the  United  States  of  America  looks  with  interest,  and  which 
is  a  work  of  universal  importance,  and  by  which  both  Costa 
Eica  and  Nicaragua  will  raise  themselves  to  a  great  height, 
cannot  but  be  embarrassed  by  differences  which  must  be 
smothered  on  its  account. 


181 

Fortunately,  the  end  of  such  a  disagreeable  contention  is 
near  at  hand.  Soon  the  upright  and  learned  Chief  Magis- 
trate of  this  great  nation  will  say  on  whose  side  justice  rests, 
and  the  Powers  of  both  hemispheres  will  learn  for  their  fu- 
ture guidance  whether  it  has  been  judicious  to  maintain  that 
an  international  compact,  concluded  by  duly  authorized  pleni- 
potentiaries, approved  by  the  Chief  Magistrates  of  the  con- 
tracting States,  ratified  by  the  national  representation  of  the 
two  countries,  exchanged  in  a  solemn  and  special  form,  le- 
gally promulgated,  communicated  oihcially  to  all  friendly  na- 
tions, and  executed  and  complied  with  in  good  faith  for  many 
years,  is  no  more  than  blank  paper,  and  has  to  fall  before 
forensic  subtleties,  behind  which  the  desire  of  breaking  it 
appears  concealed. 

Costa  Kica  confidently  relies  upon  the  wisdom  and  right- 
eousness of  the  Arbitrator.  She  trusts  in  the  self-evident 
justice  of  her  cause,  and  confidently  expects  a  favorable 
decision.  But  should  she  be  disappointed  in  this  expec- 
tation, her  deference  and  respect  for  the  decision  will  be 
none  the  less. 

PEDKO  PEREZ  ZELEDON, 
Envoy  Extraordinary  and  Minister 

Plenipotentiary  of  Costa  Rica. 

Washington,  D.  C, 

October  "mtli,  1887. 


DOCUMENTS 


DOCUMENTS. 


No.  1. 


Treaty  of  Limits  between  Costa  Rica  and  Nicaragua^  con- 
cluded April  Ihth,  1858. 

We,  Mdximo  Jerez,  Minister  Plenipotentiary  of  the  Gov- 
ernment of  the  Republic  of  Nicaragua,  and  Jose  Maria 
Caiias,  Minister  Plenipotentiary  of  the  Government  of  the 
Republic  of  Costa  Rica,  having  been  entrusted  by  our  re- 
spective Governments  with  the  mission  of  adjusting  a  treaty 
of  limits  between  the  two  Republics,  which  should  put  an 
end  to  all  the  differences  which  have  obstructed  the  perfect 
understanding  and  harmony  that  must  prevail  among  them  for 
their  safety  and  prosperity,  and  having  exchanged  our  respec- 
tive powers,  which  were  examined  by  Hon.  Senor  Don  Pedro 
R.  Negrete,  Minister  Plenipotentiary  of  the  Government  of 
the  RepubHc  of  Salvador,  exercising  the  functions  of  frater- 
nal mediator  in  these  negotiations,  who  found  them  to  be 
good  and  in  due  form,  as  we  on  our  part  also  found  good 
and  in  due  form  the  powers  exhibited  by  the  said  Minister, 
after  having  discussed  with  the  necessary  deliberation  all 
the  points  in  question,  with  the  assistance  of  the  represent- 
ative of  Salvador  who  was  present,  have  agreed  to  and  ad- 
justed the  following  Treaty  of  Limits  between  Nicaragua  and 
Costa  Rica. 

Abticle  I. 

The  RepubHc  of  Nicaragua  and  the  Republic  of  Costa  Rica 
declare  in  the  most  solemn  and  express  terms  that  if  for  one 
moment  they  wxre  about  to  enter  into  a  struggle  for  reason 
of  limits  and  for  others  which  each  one  of  the  high  contract- 


186 

ing  parties  considered  to  be  legal  and  a  matter  of  honor,  now 
after  having  given  each  other  repeated  proofs  of  good  un- 
derstanding, peaceful  principles,  and  true  fraternity,  they 
are  willing  to  bind  themselves,  as  they  formally  do,  to  secure 
that  the  peace  happily  re-established  should  be  each  day 
more  and  more  affirmed  between  the  Government  and  the 
people  of  both  nations,  not  only  for  the  good  and  advantage 
of  Nicaragua  and  Costa  Rica,  but  for  the  happiness  and 
prosperity  which,  to  a  certain  extent,  our  sisters,  the  other 
Central  American  Republics,  will  derive  from  it. 

Aeticle  II. 

•  The  dividing  line  between  the  two  Republics,  starting  from 
the  Northern  Sea,  shall  begin  at  the  end  of  Punta  de  Cas- 
tilla,  at  the  mouth  of  the  San  Juan  de  Nicaragua  river,  and 
shall  run  along  the  right  bank  of  the  said  river  up  to  a  point 
three  English  miles  distant  from  Castillo  Viejo,  said  distance 
to  be  measured  between  the  exterior  works  of  said  castle  and 
the  above-named  point.  From  here,  and  taking  the  said 
works  as  centre,  a  curve  shall  be  drawn  along  said  works, 
keeping  at  the  distance  of  three  English  miles  from  them, 
in  its  whole  length,  until  reaching  another  point,  which  shaU 
be  at  the  distance  of  two  miles  from  the  bank  of  the  river  on 
the  other  side  of  the  castle.  From  here  the  line  shall  con- 
tinue in  the  direction  of  the  Sapoa  river,  which  empties  into 
the  Lake  of  Nicaragua,  and  it  shall  follow  its  course,  keeping 
always  at  the  distance  of  two  miles  from  the  right  bank  of 
the  San  Juan  river  all  along  its  windings,  up  to  reaching  its 
origin  in  the  lake ;  and  from  there  along  the  right  shore  of 
the  said  lake  until  reaching  the  Sapoa  river,  where  the  line 
parallel  to  the  bank  and  shore  will  terminate.  From  the 
point  in  which  the  said  line  shall  coincide  with  the  Sapoa 
river — a  point  which,  according  to  the  above  description,  must 
be  two  miles  distant  from  the  lake — an  astronomic  straight  line 
shaU  be  drawn  to  the  central  point  of  the  Salinas  Bay  in  the 
Southern  Sea,  where  the  line  marking  the  boundary  between 
the  two  contracting  Republics  shall  end. 


187 

Article  III. 

Such  surveys  as  may  be  required  to  locate  this  boundary, 
whether  in  whole  or  in  part,  shall  be  made  by  Commissioners 
appointed  by  the  two  Governments  ;  and  the  two  Govern- 
ments shall  agree  also  as  to  the  time  when  the  said  survey 
shall  be  made.  Said  Commissioners  shall  have  the  power 
to  somewhat  deviate  from  the  curve  around  the  castle,  from 
the  line  parallel  to  the  banks  of  the  river  and  the  lake,  or 
from  the  astronomic  straight  line  between  Sapod  and  Sa- 
linas, if  they  find  that  natural  land-marks  can  be  substituted 
with  advantage. 

Article  IV. 

The  Bay  of  San  Juan  del  Norte,  as  well  as  the  Salinas 
Bay,  shall  be  common  to  both  Kepublics,  and,  therefore,  both 
the  advantages  of  their  use  and  the  obligation  to  contribute 
to  their  defence  shall  also  be  common.  Costa  Kica  shall  be 
bound,  as  far  as  the  portion  of  the  banks  of  the  San  Juan 
river  which  correspond  to  it  is  concerned,  to  contribute  to 
its  custody  in  the  same  way  as  the  two  Republics  shall  con- 
tribute to  the  defence  of  the  river  in  case  of  external  aggres- 
sion ;  and  this  they  shall  do  with  all  the  efficiency  within 
their  reach. 

Article  V. 

As  long  as  Nicaragua  does  not  recover  the  full  possession 
of  all  her  rights  in  the  port  of  San  Juan  del  Norte,  the  use 
and  possession  of  Punta  de  Castilla  shall  be  common  and 
equal  both  for  Nicaragua  and  Costa  Rica  ;  and  in  the  mean- 
time, and  as  long  as  this  community  lasts,  the  boundary  shall 
be  the  whole  course  of  the  Colorado  river.  It  is  furthermore 
stipulated  that,  as  long  as  the  said  port  of  San  Juan  del 
Norte  remains  d.  free  port,  Costa  Rica  shall  not  charge  Nic- 
aragua any  custom  duties  at  Punta  de  Castilla. 


188 
Akticle  VI. 

The  Republic  of  Nicaragua  shall  have  exclusively  the  do- 
minion and  sovereign  jurisdiction  over  the  waters  of  the  San 
Juan  river  from  its  origin  in  the  Lake  to  its  mouth  in  the 
Atlantic  ;  but  the  Republic  of  Costa  Rica  shall  have  the  per- 
petual right  of  free  navigation  on  the  said  waters,  between 
the  said  mouth  and  the  point,  three  English  miles  distant 
from  Castillo  Viejo,  said  navigation  being  for  the  purposes 
of  commerce  either  with  Nicaragua  or  with  the  interior  of 
Costa  Rica,  through  the  San  Carlos  river,  the  Sarapiqui,  or 
any  other  way  proceeding  from  the  portion  of  the  bank  of 
the  San  Juan  river,  which  is  hereby  declared  to  belong  to 
Costa  Rica.  The  vessels  of  both  countries  shall  have  the 
power  to  land  indiscriminately  on  either  side  of  the  river,  at 
the  portion  thereof  where  the  navigation  is  common  ;  and  no 
charges  of  any  kind,  or  duties,  shall  be  collected  unless  when 
levied  by  mutual  consent  of  both  Governments. 

Abticle  YII. 

It  is  agreed  that  the  territorial  division  made  by  this  treaty 
cannot  be  understood  as  impairing  in  any  way  the  obliga- 
tions contracted  whether  in  public  treaties  or  in  contracts  of 
canalization  or  public  transit  by  the  Government  of  Nic- 
aragua previous  to  the  conclusion  of  the  present  treaty; 
on  the  contrary,  it  is  understood  that  Costa  Rica  assumes 
those  obligations,  as  far  as  the  portion  which  corresponds  to 
its  territory  is  concerned,  without  injury  to  the  eminent  do- 
main and  sovereign  right  which  it  has  over  the  same. 

Akticle  VIII. 

If  the  contracts  of  canalization  or  transit  entered  into  by 
the  Government  of  Nicaragua  previous  to  its  being  informed 
of  the  conclusion  of  this  treaty  should  happen  to  be  invali- 
dated for  any  reason  whatever,  Nicaragua  binds  herself  not 


189 

to  enter  into  any  other  arrangement  for  the  aforesaid  pur- 
poses without  first  hearing  the  opinion  of  the  Government 
of  Costa  Rica  as  to  the  disadvantages  which  the  transaction 
might  occasion  the  two  countries  ;  provided  that  the  said 
opinion  is  rendered  within  the  period  of  30  days  after  the 
receipt  of  the  communication  asking  for  it,  if  Nicaragua 
should  have  said  that  the  decision  was  urgent ;  and,  if  the 
transaction  does  not  injure  the  natural  rights  of  Costa  Rica, 
the  vote  asked  for  shall  be  only  advisory. 

Akticle  IX. 

Under  no  circumstances,  and  even  in  case  that  the  Repub- 
lics of  Costa  Rica  and  Nicaragua  should  unhappily  find  them- 
selves in  a  state  of  war,  neither  of  them  shall  be  allowed  to 
commit  any  act. of  hostility  against  the  other,  whether  in  the 
port  of  San  Juan  del  Norte,  or  in  the  San  Juan  river,  or  the 
Lake  of  Nicaragua. 

Article  X. 

The  stipulation  of  the  foregoing  article  being  essentially 
important  for  the  proper  custody  of  both  the  port  and  the 
river  against  foreign  aggression,  which  would  affect  the  gen- 
eral interests  of  the  country,  the  strict  performance  thereof 
is  left  under  the  special  guarantee  which,  in  the  name  of  the 
mediator  Government,  its  Minister  Plenipotentiary  herein 
present  is  ready  to  give,  and  does  hereby  give,  in  use  of  the 
faculties  vested  in  him  for  that  purpose  by  his  Government. 

Article  XI. 

In  testimony  of  the  good  and  cordial  understanding  which 
is  established  between  the  Republics  of  Nicaragua  and  Costa 
Rica,  they  mutually  give  up  all  claims  against  each  other,  on 
whatever  ground  they  may  be  founded,  up  to  the  date  of  the 
present  treaty  ;  and  in  the  same  way  the  two  contracting  par- 


190 

ties  do  hereby  waive  all  claims  for  indemnification  of  damages 
which  they  might  consider  themselves  entitled  to  present 
against  each  other. 

Article  XII. 

This  treaty  shall  be  ratified,  and  the  ratifications  thereof 
shall  be  exchanged,  at  Santiago  de  Managua  within  forty  days 
after  it  is  signed. 

In  testimony  whereof  we  have  hereunto  subscribed  our 
names  to  the  present  instrument,  executed  in  triplicate,  to- 
gether with  the  Hon.  Minister  of  Salvador,  and  under  the 
countersign  of  the  respective  secretaries  of  Legation,  at  the 
city  of  San  Jos6,  in  Costa  Eica,  on  the  15th  day  of  April,  in 
the  year  of  our  Lord  1858. 

MAXIMO  JEKEZ. 
JOSE  M.  CAHAS. 
PEDKO  BOMULO  NEGKETE. 
MANUEL  KIVAS, 
Secretary  of  the  Legation  of  Nicaragua. 

SALYADOK  GONZALEZ, 
Secretary  of  the  Legation  of  Costa  Rica. 
FLOEENTINO  SOUZA, 
Secretary  of  the  Legation  of  Salvador. 

\  Additional  Act. 

The  undersigned,  Ministers  of  Nicaragua  and  Costa  Rica, 
wishing  to  give  public  testimony  of  their  high  esteem  and  of 
their  feelings  of  gratitude  towards  the  Republic  of  Salvador, 
and  the  worthy  representative  of  the  same.  Col.  Don  Pedro 
R.  Negrete,  have  agreed  that  the  treaty  of  territorial  limits 
be  accompanied  with  the  following  declaration,  namely : 

"  Whereas,  the  Government  of  Salvador  has  given  to  the 
Governments  of  Costa  Rica  and  Nicaragua  the  most  authentic 
testimony  of  its  noble  feelings,  and  of  its  high  appreciation 
of  the  value  and  necessity  of  cultivating  fraternal  sympathy 


191 

among  these  Eepublics,  and  lias  interested  itself  as  efficiently 
as  friendly  in  the  equitable  settlement  of  the  differences  which 
unhappily  have  existed  between  the  high  contracting  parties, 
a  settlement  which  has  been  secured  by  the  two  Legations, 
owing  in  great  part  to  the  estimable  and  efficient  action  of  the 
Hon.  Senor  Negrete,  Minister  Plenipotentiary  of  the  said 
Government,  who  proved  to  be  the  right  person  to  accom- 
plish the  generous  mediation  for  wdiich  he  was  appointed, 
and  who  has  known  perfectly  well  how  to  meet  the  inten- 
tions of  his  Government,  and  owing  also  to  the  important 
aid,  to  the  learning  and  to  the  impartial  suggestions  of  the 
same  Minister  during  the  discussion  of  the  subject,  we,  the 
Representatives  of  Costa  Eica  and  Nicaragua,  in  the  name 
of  our  respective  countries,  do  hereby  fulfil  the  pleasant  duty, 
of  declaring  and  recording  here  all  the  gratitude  which  we 
feel  for  the  patriotism,  high  mindedness,  fraternity,  and  be- 
nevolence characterizing  the  Government  of  Salvador. 

In  testimony  whereof  we  have  hereunto  subscribed  our 
names  and  signed  this,  in  triplicate,  in  the  presence  of  the 
Hon.  Minister  of  Salvador,  under  the  countersign  of  the  re- 
spective Secretaries  of  Legation,  in  the  city  of  San  Jose,  the 
capital  of  Costa  Rica,  on  the  15th  day  of  April,  in  the  year 
of  our  Lord  1858. 

MAXIMO  JEREZ. 

JOSE  M.  ca:^as. 

MANUEL  RIYAS, 

Secretary  of  the  Legation  of  Nicaragua. 
SALVADOR  GONZALEZ, 

\         Secretary  of  the  Legation  of  Costa  Rica. 


192 


No.  2. 


■Decree  of  the  federal  Congress  of  Central  America  in  1825, 
approving  the  annexation  of  Nicoya  to  Costa  Rica. 

The  Federal  Congress  of  the  Kepublic  of  Central  America, 
taking  into  consideration,  firstly,  the  reiterated  petitions  of  the 
authorities  and  municipal  bodies  of  the  towns  of  the  district 
of  Nicoya,  asking  for  their  separation  from  Nicaragua  and 
their  annexation  to  Costa  Eica  ;  and  secondly,  that  the  said 
towns  and  people  actually  annexed  themselves  to  Costa  Rica 
at  the  time  in  which  the  political  troubles  of  Nicaragua  took 
place ;  and  thirdly,  the  topographical  situation  of  the  same 
district,  has  been  pleased  to  decree,  and  does  hereby  decree  : 

Art.  1.  For  the  time  being,  and  until  the  demarcation 
of  the  territory  of  each  State  provided  by  Art.  YII  of  the 
Constitution  is  made,  the  district  of  Nicoya  shaU  continue  to 
be  separated  from  Nicaragua  and  annexed  to  Costa  Rica. 

Art.  2.  In  consequence  thereof,  the  district  of  Nicoya 
shall  recognize  its  dependence  upon  the  authorities  of  Costa 
Rica,  and  shall  have,  in  the  Legislature  of  the  latter,  such 
representation  as  corresponds  to  it. 

Art.  3.  This  decree  shall  be  communicated  to  the  Assem- 
blies of  Nicaragua  and  Costa  Rica. 

Let  it  pass  to  the  Senate. 

Given  at  Guatemala  December  9,  1825. 

[From  the  "  Resena  Historica  de  Centro-Amgrica,"  by  Lorenzo  Montufar, 
Guatemala,  1881,  Vol.  IV,  p.  382.] 


193 


No.  3. 

The  state  of  things  existing  at  the  time  of  the  labors  of  the 
Constituent  Assembly  is  declared  to  be  an  extraordinary 
regime,  wherein  the  constitutional  rules  in  force  under 
regular  circumstances  could  be  laid  aside. 

Session  of  the  30th  of  November. 

******* 

There  were  present  fourteen  members,  and  absent  Sen  ores 
Lacayo  and  Machado  on  account  of  sickness,  and  Mejia,  Sa- 
linas, Basilio,  and  Carazo  for  other  reasons.     *     *     * 

Senores  Baca  and  Chamorro  (Don  Pablo)  said  that  they 
wanted  to  explain  their  negative  votes  to  the  decree  of  the 
28th  instant,  and,  the  President  having  acceded  to  their  wish, 
it  is  hereby  recorded  that  the  said  gentlemen  refused  to  vote 
in  the  affirmative  because  they  understand  that  the  faculty 
of  exercising  the  acts  which  the  decree  refers  to  is  included 
among  the  faculties  of  the  legislative  power,  and  that  one 
thing  is  faculties  of  the  legislative  power  and  another  thing 
faculties  of  legislation. 

******* 

Senor  Lopez  made  the  following  motion  :  "  Whereas  the 
election  of  justices  desired  to  be  made  by  this  august  body 
may  find  an  insuperable  obstacle  in  the  scarcity  of  men  prop- 
erly qualified  for  such  offices,  I  suggest  to  you  that,  before 
making  the  said  election,  you  pass  a  resolution  rendering  the 
present  members  of  this  body  to  be  eligible,  since  the  consti- 
tutional provision  which  excludes  the  members  of  Congress  from, 
serving  injudicial  offices  can  only  be  understood  during  an 

ORDINARY  REGIME." 

The  same  Senor  Lopez  asked  this  to  be  declared  urgent ; 

and  Senor  Cesar,  having  made  a  previous  motion  that  all 

questions  referring  to  the  faculties  of  the  Executive  Power 

should  be  first  decided,  and  that  the  questions  in  regard  to 

13 


194 

the  judiciary  should  be  postponed  to  another  day,  the  mo- 
tion of  Senor  Cesar  was  carried.     *     ^     * 
The  session  was  adjourned. 

PEDKO  ZELEDON, 

Vice-President. 
J.  MIGUEL  CAKDENAS, 

Secretary. 
FEANCISCO  JIMENEZ, 

Secretary. 

[From  "La  Gaceta  de  Nicaragua"  No.  2,  January  9,  1858.] 


195 


No.  4. 


CommMnication  from  the  Costa  Rican  Secretary  of  State — It 
shows  the  ardent  desire  of  Costa  Rica  to  settle  finally  and 
forever,  the  questions  pending  hetween  it  and  Nicaragua,  even 
at  the  sacrifice  of  its  own  rights  and  its  national  pride. 

National  Palace, 
San  Jose,  December  15,  1857. 

To  the  Plenipotentiaries  in  Nicaragua  : 

I  have  had  the  pleasure  to  receive  your  very  estimable 
communications  of  the  29th  and  30th  of  November  past,  with 
inclosure,  consisting  of  a  copy  of  the  letter  addressed  by  both 
of  you  from  the  city  of  Kivas  to  the  Secretary  of  Foreign 
Relations  at  Managua.  I  have  also  received  your  despatches 
dated  at  Bivas  on  the  9th  instant,  and  inclosures  marked 
Nos.  7,  11,  12,  and  13,  as  well  as  copies  of  the  treaty  made 
by  you  on  the  8th  instant,  and  documents  appended  thereto. 

His  Excellency  the  President  of  the  Republic  having  ac- 
quainted himself  with  the  tenor  of  the  ten  articles  of  the 
agreement  above  named,  and  with  the  explanations  contained 
in  your  despatches,  has  directed  me  to  tell  you  both,  in  reply, 
as  I  have  the  honor  to  do,  that  only  through  the  fatality  of 
circumstances  under  which  the  Central  American  countries 
find  themselves  at  present,  owing  to  the  recent  filibustering 
invasion,  he  could  have  been  moved  to  entertain  and  con- 
sider such  stipulations  as  the  ones  referred  to,  which,  while 
proving  that  Nicaragua  did  not  think  of  the  dangers  we  all 
are  now  running,  show  also  that  she  did  not  take  into  account 
the  innumerable  sacrifices  that  the  Government  and  people  of 
Costa  Rica  have  made  in  older  to  cause  their  ancient  rights, 
and  their  signification  at  the  present  day,  to  he  recognized. 

Notwithstanding  this,  the  undersigned  will  refrain  from 
making  any  of  those  I'emarks  which  naturally  spring  up  from 
the  consideration  of  the  terms  on  which  some  one  of  the  conces- 


196 

sions  of  Nicaragua  have  been  7nade,  requiring  in  compensation 
thereof  the  sacrifice  of  such  immense  interests  as  are  involved 
in  the  concessions  of  Costa  Rica  ;  but  he  will  state^  however^ 
that  from,  the  moment  in  which  the  Costa  Rican  Government 
noticed,  the  attitude  taken  hy  that  of  Nicaragua,  and  the  char- 
acter  of  the  accusations  made  hy  the  latter  against  the  former, 
it  firmly  decided  to  abandon  even  those  positions  which  had  been 
conquered  at  the  cost  of  Costa  Rican  blood,  although  without 
any  intention  to  retain,  them,  except  during  the  period  of  the 
common  danger.  Under  these  circumstances,  and  acting  always 
under  the  impulse  of  its  peaceful  ideas,  a7)d  of  its  vehement 
desire  of  saving  the  independence  of  the  Central  American  soil, 
the  Government,  setting  aside  and  removing  whatever  obstacles 
might  be  found  in  its  way,  even  at  the  cost  of  great  sacrifices, 
has  decided  to  refer  the  said  treaty  immediately  to  the  consid- 
eration of  the  Congress  of  this  Republic.  There  see?ns  to  be 
no  doubt  that  the  generous  and  noble  feelings  of  the  representa- 
tives of  the  Costa  Rican  people  will  induce  them  to  sacrifice, 
as  the  Executive  does,  the  rights  herein  involved,  and  ratify, 
even  to  the  detriment  of  a  just  feeling  of  national  pride,  the 
treaty  which  you  both  have  concluded  ;  and  with  this  Nicara- 
gua is  given  a  very  significant  testimo7iy  of  the  loyalty  and 
disinterestedness  of  Costa  Rica,  and  how  highly  it  values  the 
national  Union  and  independence  in  the  presence  of  the  risks 
to  which  they  are  exposed. 

As  soon  as  the  national  representation  of  Costa  Rica  seals 
with  its  approval  the  said  treaties,  I  shall  have  the  honor  to 
send  them  to  you  by  messenger,  it  being  understood  that  in 
the  meantime  the  Constituent  Assembly  of  Nicaragua  will 
lend  to  them  the  same  attention,  in  obder  that  all  those 

QUESTIONS  AS  HAVE   DIVIDED   THESE   TWO  COUNTRIES  BE  FOREVER 

SETTLED,  and  the  two  countries  themselves  may,  with  entire 
freedom  and  liberty,  attend  to  their  preservation. 

I  have  the  honor  to  subscribe  myself,  with  sincere  expres- 
sions of  high  esteem  and  consideration,  your  obedient  servant, 

NAZARIO  TOLEDO. 


197 


No.  5. 

Commimication  showing  the  spirit  of  conciliation  and  fra- 
ternity which  prevailed  in  the  making  of  the  treaty  of  limits. 
— The  limits  hetween  Costa  Rica  and  Nicaragua  are,  more 
than  anything  else,  internal  or  domestic  j^irisdictional  bound- 
aries. 

Managua,  Jamiary  18,  1858. 

To  the  Secretary  for  Foreign  Relations  of  the  Republic  of 
Costa  Rica. 
Sir  :  The  treaty  adjusted  on  the  8th  of  December  ultimo, 
between  the  Commissioners  of  the  Government  of  your  Re- 
public and  the  President  of  Nicaragua,  General  Don  Tomas 
Martinez,  was  submitted  to  the  Constituent  Assembly  of  this 
Republic ;  and  that  august  body,  after  giving  the  subject  its 
most  attentive  meditation,  decided  that,  in  order  to  remove 
such  obstacles  as  present  themselves  for  its  ratification,  the 
negotiations  of  peace,  amity,  limits,  and  alliance  between  the 
two  countries  should  be  continued,  so  as  to  conciliate  their 
respective  interests  and  secure  their  independence.  This 
will  be  shown  to  you  by  the  terms  of  the  decree,  an  author- 
ized copy  of  which  I  have  the  honor  to  enclose. 

fc  *  ^  ^  *  * 

The  limits  hetween  the  Central  American  States  are  no  more 
than  limits  dividing  sections  of  one  and  the  same  State.  More 
than  barriers  to  opposite  or  conflicting  interests,  they  have  to 
be  considered  as  internal  or  domestic  jurisdictional  boundaries. 
The  States  of  Central  America  are  no  more  than  one  people, 
whatever  boundaries  may  be  drawn  to  separate  them  from 
each  other.  And  for  this  reason  sxtch  questions  as  may 
arise  out  of  this  subject  should  never  be  carried  to  the  ex- 
treme which  has  been  attempted,  unless  some  responsibility 
appears  involved  in  it,  which,  affecting  the  interests  of  the 
one  country,  may  react  against  the  other.  No  difficulty  ap- 
pears to  exist  for  the  arrangement  concerning  reciprocal  com- 


198 

merce,  and  that  of  foreign  countries  through  the  San  Juan 
river ;  and  as  the  maintaining  their  independence  is  a  com- 
mon desire  of  the  two  Kepublics,  no  obstacle  appears  to 
exist  for  combining  for  the  mutual  defence  of  that  sacred 
right.  My  Government  earnestly  desires  that  the  people  of 
hoth  Costa  Rica  and  Nicaragua  may  form  a  close  unity,  and 
appear  as  if  they  were  only  one  people  ;  and  in  compliance 
with  its  duty,  it  is  ready  to  appoint  at  once  the  proper 
Commissioners,  who,  in  union  with  those  whom  your  Re- 
public may  select,  should  give  satisfactory  conclusion  to  the 
pending  negotiations.  My  Government  expects  that  yours 
will  be  pleased  to  communicate  to  your  own  Commissioners 
such  instructions  as  are  required,  for  the  reasons  above  ex- 
pressed, as  it  has  on  its  own  part  done  to-day. 

*  *  *  *  -jf  ^ 

GREGORIO  JUAREZ. 

[From  the  "Gaceta  de  Nicaragua,"  No.  of  January  25,  1858.] 


199 


No.  6. 


Congratulation  hy  the  United  States  Minister  for  the  near  set- 
tlement of  the  differences  hetioeen  Costa  Rica  and  Nicara- 
gua.— Speech  of  Gen  Miraheau  B.  Lamar,  Envoy  Extra- 
ordinary and  Minister  Plenipotentiary  of  the  United  States 
in  Nicaragua. 


"  May  Your  Excellency  allow  me  to  express,  in  conclusion, 
liow  gratifying  it  is  for  me  that  the  storm  of  war  which  not 
long  ago  threatened  this  country  and  one  of  her  neighboring 
sisters  has  vanished  before  the  serene  brilliancy  of  another 
policy  much  more  to  be  desired  ;  that  Nicaragua  and  Costa 
Rica  have  put  an  end  to  their  controversies^  and  that^  as  an- 
nounced hy  everything,  their  old  fraternal,  peaceful  relations 
are  to  he  re-estahlished  upon  solid  foundations.  Who  can  say 
what  may  come  out  of  such  a  happy  event  ?  It  may,  per- 
haps, conduce  to  the  union  of  the  two  countries.  And  some- 
times I  have  even  thought  that  such  a  policy  should  neces- 
sarily promote  the  happiness  of  both.  In  my  opinion  such 
an  example  should  be  followed  with  great  advantage  by  all 
the  States  of  Central  America,  whose  reunion  under  their 
former  Federal  Constitution  would  not  only  secure  for  them 
the  benefits  of  peace,  and  strength,  and  dignity,  but  would 
place  them  on  the  same  level  as  other  important  nations, 
rendering  them  able  to  compete  with  them  in  the  prosecution 
of  prosperity  and  glory.  If  Nicaragua,  inspired  by  such 
feelings,  should  take  the  first  step  for  the  accomplishment  of 
such  a  great  enterprise  she  would  win  for  herself  a  crown  of 
immortal  honor  and  the  gratitude  of  all  hearts  which  throb 
for  the  good  of  this  country  and.  the  future  progress  of  its 
people." 

[From  the  Oaceta  de  Nicaragua,  No.  7,  February  13,  1858.] 


200 


No.  7. 


Note  of  the  Costa  Rican  Secretary  of  State  showing  the  peace- 
ful dispositiooi  of  Costa  Rica  in  regard  to  the  question  of 
liniiis'. 

San  Jose,  Fehruai^  15,  1858. 

To  the  Minister  of  Foreign  Relations  of  the  Republic  of  Nic- 
aragua : 

I  have  had  the  honor  to  receive  your  estimable  communi- 
cation, dated  at  Managua,  on  the  18th  of  January  instant,  to 
which  a  copy  of  the  Decree  No.  19  of  the  15th  of  the  same 
month  of  January,  enacted  by  the  Congress  of  your  Kepublic, 
was  appended. 

His  Excellency  the  President  of  Costa  Eica  had  flattered 
himself  that  all  the  questions  which  for  such  a  long  time  had 
maintained  two  bordering  and  sister  nations  in  disagreement, 
although  for  so  many  reasons  they  are  called  to  form  but  one 
family,  one  nation,  and  to  consolidate  and  combine  their  re- 
spective rights  and  prerogatives  to  save  their  own  existence, 
overcome  dangers  and  threats  from  outside,  retain  their 
political  autonomy,  and  secure  the  accomplishment  of  their 
future  destinies,  were  settled  satisfactorily  to  both  parties  by 
means  of  the  treaty  of  December  8,  which  this  Government 
readily  approved  and  which  was  ratified  with  no  less  readi- 
ness by  the  legislative  body,  showing  by  all  this  the  self-de- 
nial which  was  required  by  circumstances,  and  overlooking 
the  disadvantages  and  the  great  sacrifices  which  Costa  Rica 
incurred  for  the  sake  of  harmony,  good  friendship,  and  well 
understood  interests  of  both  Republics. 

Nevertheless,  if,  as  seen  by  your  despatch  and  by  the  de- 
cree No.  19  of  January  15,  some  obstacles  have  presented 
themselves,  which  from  their  magnitude,  their  nature,  and 
their  great  political  and  social  moment  render  it  necessary  to 
postpone  the  consummation  of  an  act  which  in  many  respects 
involves  the  interests  of  the  whole  of  Central  America,  and 


201 

was  intended  to  put  an  end  to  unfortunate  territorial  ques- 
tions, my  Government  cannot  ignore  the  weight  of  your  ar- 
guments in  support  of  the  decree  enacted  by  the  Congress  of 
your  Republic,  rejecting  the  treaty  of  peace  and  limits  which 
had  been  concluded  by  the  President,  Don  Tomas  Martinez, 
and  the  Commissioners  of  Costa  Rica. 

My  Government  is  pleased,  however,  to  see  the  provision 
in  the  said  decree  to  the  effect  that  the  negotiations  should 
continue,  and  also  the  activity  with  w^hich  your  Government 
has  carried  this  provision  at  once  into  effect  by  appointing 
commissioners  who,  in  union  with  such  commissioners  as  be 
appointed  by  my  Government,  should  discuss  again  and  ad- 
just a  settlement  of  such  vital  interest. 

You  may  be  assured  that  Costa  Rica  earnestly  and  sin- 
cerely desires  to  preserve  good  understanding,  friendship, 
and  fraternal  harmony  with  Nicaragua,  and  that  it  is  there- 
fore animated  with  the  best  wishes  in  favor  of  the  peace  of 
both  countries,  it  being  persuaded  of  the  intimate  connec- 
tion, both  in  interest,  happiness,  and  danger,  which  exists  be- 
tween them. 

So  it  is  that  I  can  assure  from  this  moment,  and  the  Gov- 
ernment of  Nicaragua  can  depend  upon  it,  that  every  con- 
sideration and  respect  will  be  shown  in  this  Republic,  with 
pleasure  and  earnestness,  to  the  gentlemen  that  your  Govern- 
ment may  select  for  the  important  mission  above  alluded  to. 

His  Excellency  the  President  expects  that  the  efforts 
which  Nicaragua  is  going  to  make,  the  honorable  and  grati- 
fying mediation  of  Salvador,  exercised  through  its  worthy 
Minister,  Senor  Negrete,  who  is  already  in  this  capital,  and 
the  exceedingly  favorable  disposition  of  my  own  Government, 
will  give  such  results  as  will  correspond  to  the  interests  to  be 
dealt  with  and  to  the  good  name  of  the  States  which  con- 
tributed to  it. 

Please  accept  the  testimony  of  the  distinguished  consid- 
eration with  which  I  subscribe  myself  your  attentive  servant, 

NAZARIO  TOLEDO. 


202 


No.  8. 

Coramunication  from  the  Secretary  of  State  of  Costa  Rica^ 
shoioing  that  the  initiation  of  the  treaty  of  1858  was  due  to 
the  friendly  mediation  of  the  Government  of  Salvador ,  and 
to  overtures  made  by  Nicaragua,  subsequent  to  the  repudia- 
tion by  the  latter  of  the  treaty  of  1857  which  Costa  Rica 
had  approved  of 

Department  of  Foreign  Eelations  of  Costa  Eica, 

National  Palace, 
San  Jose,  February  16,  1858. 

Sir  :  His  Excellency  the  President  of  this  Eepublic  has 
officially  received  to-day  His  Excellency  Don  Pedro  E.  Ne- 
grete.  Envoy  Extraordinary  and  Minister  Plenipotentiary  of 
Salvador,  who  comes  with  the  most  important  and  gratifying 
mission  to  mediate  in  the  question  of  territorial  limits. 

Although  this  Government  has  given  repeated  proofs  of 
its  desire  to  obtain  a  settlement,  which  with  no  less  frequency 
has  been  made  illusory ;  although  its  best  wishes  proved  to 
be  fruitless  when  it  accredited  a  Legation,  with  ample  in- 
structions, to  remove  by  an  equitable  settlement  the  only 
obstacle  capable  of  hindering  the  relations  and  reciprocal 
interests  of  both  Governments  from  being  strengthened ;  al- 
though the  rejection  of  the  treaty  of  December  3d,  was  cal- 
culated to  inspire  diffidence  and  cause  this  Government  to 
be  more  circumspect  in  entering  into  further  negotiations ; 
notwithstanding  all  that,  my  Government^  taking  into  consid- 
eration the  friendly  intervention  of  the  Govemirient  of  Salva- 
dor, and  its  efforts,  both  commendable  and  honorable,  in  favor 
of  Costa  Mica  as  well  as  Nicaragua,  and  the  fraternal  mani- 
festations of  the  worthy  Salvadorean  Minister,  has  not  felt 
able  to  refuse  a  favorable  hearing  to  the  statements  made  by 
Senor  Negrete  on  behalf  of  his  Government,  and  therefore  it 
finds  itself  well  disposed  to  listen  to  such  propositions  as  may 
be  made  by  the  Government  of  Nicaragua,  hoping  that  on  this 


•  203 

occasion  the  efforts  of  Costa  Rica  and  the  sacrifices  already 
made  by  her  in  different  ways  should  not  prove  useless. 

An  answer  to  this  effect  has  been  given  with  pleasure  to 
the  Minister  of  Salvador,  who,  even  before  his  official  re^ 
ception,  had  suggested  that  a  Legation  from  your  Republic 
should  he  7'eceived  here,,  and  declared  that  the  place  for  the 
negotiation  should  be  in  this  capital,  since  our  Legation  in 
your  capital  has  been  withdrawn. 

I  subscribe  myself,  with  sentiments  of  the  greatest  consid- 
eration and  respect,  your  obedient  servant, 

NAZARIO  TOLEDO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua,  Managua. 


204  ^  . 

No.  9. 

Act  of  Exchange  of  Ratifications  of  the  Treaty  of  Limits, 

I,  Tomas  Martinez,  President  of  the  Eepublic  of  Nicaragua, 
and  I,  Rafael  Mora,  President  of  the  Republic  of  Costa  Rica, 
fully  and  competently  authorized  by  the  respective  Congresses 
of  Nicaragua  and  Costa  Rica  to  perform  the  exchange  of 
ratifications  of  the  treaty  of  territorial  limits,  which  was 
signed  by  Plenipotentiaries  of  both  Republics  and  by  one  of 
Salvador  as  mediator  power  on  the  15th  of  April  instant,  at 
San  Jos^,  the  Capital  of  Costa  Rica,  said  Plenipotentiaries 
having  been,  on  the  part  of  the  Republic  of  Nicaragua,  Gen- 
eral Don  Maximo  Jerez,  on  the  part  of  that  of  Costa  Rica,- 
General  Don  Jos^  Maria  Canas,  and  on  the  part  of  Salvador, 
Col.  Don  Pedro  Romulo  Negrete,  having  met  at  the  city  of 
Rivas,  in  Nicaragua,  for  the  purpose  aforesaid,  have  this  day 
performed  the  exchange  of  the  respective  official  instruments 
of  ratification  of  the  said  treaty  of  April  15th,  and  drawn 
up  and  signed  in  triplicate,  as  we  do  now,  the  present  act  of 
exchange,  which  will  be  countersigned  by  the  respective  Sec- 
retaries of  Foreign  Relations  of  Nicaragua  and  Costa  Rica, 
Lie.  Don  Gregorio  Juarez  and  Dr.  Don  Nazario  Toledo. 

Done  this  26th  day  of  the  month  of  April,  in  the  year  of 
our  Lord  1858. 

TOMAS  MARTINEZ. 

JUAN  RAFAEL  MORA. 

GREGORIO  JUAREZ, 
Secretary  of  State  for  Foreigyi  Relations. 

NAZARIO  TOLEDO, 
Secretary  of  State  for  Foreign  Relations. 

[From  the  '*  Gaceta  de  Nicaragua,"  No.  15,  May  8,  1858.] 


205 


No.  10. 


Editorial  of  the  Official  Newspaper  of  JSidaragiia  on  the  Con- 
clusion of  the  Treaty. — It  shows  the  spirit  of  conciliation 
and  fraternity  of  Costa  Rica  and  Nicaragua. —  Thanks 
given  to  the  Government  of  Salvador  for  its  friendly  medi- 
ation. 

Peace  between  Nicaragua  and  Costa  Eica. 

The  a7icient  question  of  limits  hetiveeri  the  txoo  Republics^ 
which  has  imposed  so  many  sacrifices  on  both  of  them,  and 
which  so  often  has  occupied  their  attention  at  a  moment  in 
which  it  was  imperative  for  them  to  devote  it  to  something 
else  of  a  much  greater  character ;  that  fatal  difference,  fruit- 
ful source  of  libellous  publications,  disgraceful  to  the  dignity 
of  the  public  press  ;  that  dispute,  in  fine,  which,  exciting  the 
minds,  often  puts  us  face  to  face,  ready  to  fight  and  to  redeem 
with  blood  the  wrong  done,  or  alleged,  appears  now  to  have 
been,  as  it  indubitably  has  been,  compromised  in  the  most 
harm,onious  manner.  The  stains  which  soiled  the  pages  of 
the  history  of  the  two  countries  have  been  removed,  and 
that  fraternity  which  God  established  between  their  people, 
and  which  men  attempted  to  ignore,  has  been  promoted  and 
fostered. 

Up  to  this  moment  the  Government  has  not  yet  any  knowl- 
edge of  the  treaty  concluded  to  this  effect.  It  scarcely  knows 
about  it,  anything  else  than  it  was  concluded  on  very  equi- 
tahle  terms.  But  this  is  enough  to  make  it  feel  satisfied  for  the 
accomplishment  of  its  expectations  and  the  success  of  the 
labors  lately  undertaken. 

True  it  is,  indeed,  that  there  is  no  question  in  this  world 
which  cannot  be  solved  when  there  is  a  disposition  to  do  so. 
Diplomacy  has  saved  the  human  race  from  shedding  as  much 
blood  as  has  been  shed  when  it  proved  to  be  unable  to 
exercise  its  empire. 


206 

A  conviction,  sufficiently  founded,  tells  us  that  this  time 
there  will  be  no  obstacle  for  the  ratification  of  the  treaty, 
both  because  ofthe'  general  desire  that  such  differences  he  at  least 
adjusted,  even  by  setting  aside  some  right  or  another,  and 
because,  as  it  is  reported,  the  settlement  has  heen  made  in  such 
a  way  as  not  to  attack  former  engagements,  and  fully  satisfy 
the  two  peace-making  parties. 

The  Government  officials  who  have  been  able  to  render 
themselves  superior  to  the  passions  begotten  and  fostered  in 
the  course  of  the  controversy ;  the  persons  who  have  inter- 
vened, or  may  in  the  future  intervene,  to  seal  the  cordiality  now 
coming  into  existence,  and  develop  it  to  such  a  degree  as  is 
becoming  to  countries  so  intimately  connected  with  each 
other,  have  crowned  themselves  with  glory,  and  conquered 
for  their  native  countries,  not  a  new  province  won  by  force  of 
arms,  but  peace,  rest,  fraternity,  and  the  benevolence  of  a 
sister  Eepublic,  with  which  it  has  to  run  the  same  fate,  since 
the  interests  which  connect  it  with  her  are  identical. 

The  Government  of  Salvador,  by  selecting  such  an  intelH- 
gent  and  active  representative  as  Colonel  Don  Pedro  Eomulo 
Negrete  to  carry  into  effect  its  generous  mediation,  has  given 
full  evidence  of  the  deep  concern  that  it  felt  in  the  uncertain 
and  dangerous  condition  of  things  between  Nicaragua  and 
Costa  Rica,  and  has  won,  the  same  as  its  indefatigable  repre- 
sentative, the  purest  satisfaction  of  having  done  her  sisters  one 
of  the  most  estimahle  benefits  that  could  he  expected. 

[From  the  "  Gaceta  de  Nicaragua,"  No.  14,  May  1st,  1858.] 


207 


No.  11. 
Leave-taking  of  President  Mora. 

EivAS,  San  Juan  del  Sur,  May  2,  1858. 

To  His  Excellency  Don  Tomas  Martinez, 

President  of  Nicaragua. 

Sir  :  The  great  objects  of  our  meeting  at  Rivas  having 
been  so  happily  accomplished,  I  return  to  my  country  with 
feelings  of  satisfaction  and  contentment  for  the  benevolent 
attentions  kindly  extended  to  me,  both  by  Your  Excellency, 
the  various  members  of  the  Government,  and  some  distin- 
guished citizens  of  your  Republic. 

I  congratulate  myself  for  having  had  the  good  fortune  of 
signing,  with  Your  Excellency,  the  compacts  which  put  an 
end  to  all  the  causes  of  disturhance  which  have  affected  the 
relations,  both  political  and  commercial,  between  our  respec- 
tive countries,  and  which  will  regulate  them  in  the  future  and 
enable  Nicaragua  and  Costa  Rica  to  fight  together  against 
the  pretensions  of  filibusterism,  as  well  as  to  cement  in  the 
future  our  respective  rights  and  liberties  and  the  integrity 
and  independence  of  the  country.  I  congratulate  myself, 
with  so  much  more  reason  for  all  that,  because  the  patriotic 
man  who  knew  how  to  preserve  the  honor  of  the  Nicaraguan 
people  in  the  middle  of  difficulties  and  privations  of  all 
classes,  always  struggling  with  the  common  enemy,  is  the  one 
who,  with  his  signature,  has  sealed  the  peace  and  friendship 
of  both  peoples,  and  so  secured  happiness  and  greatness  to 
Nicaragua. 

Your  Excellency  can  rely  upon  me  for  the  carrying  out  of 
your  programme  of  order  and  respect  to  the  principle  of  legal 
authority.  In  this  regard  our  ideas  will  always  be  in  har- 
mony. I  return  to  my  country  contented,  I  say  so  again, 
making  fervent  wishes  for  the  preservation  of  Your  Excel- 
lency and  for  the  greatness  and  happiness  of  the  people  of 


208 

Nicaragua,  who,  entrusting  their  destinies  to  Your  Excellency, 
have  given  proof  that  they  know  how  to  reward  merit. 
Your  true  and  loyal  friend, 

EAFAEL  MOEA. 

[From  the  "  Gaceta  de  Nicaragua,"  No.  15,  May  8,  lS58.] 


209 

No.  12. 
Leave-taking  of  Senor  Negrete, 

Legation  of  Salvadok, 

Nbab  the  Governments  of  Nicaragua  and  Costa  Rica. 

No.  17.  Managua,  May  6,  1858. 

To  the  Hon.  Don  Gregorio  Juarez, 

Secretary  of  State  for  the  Department  of  Foreign  Relations 
of  the  Repuhlic  of  Nicaragua. 

Sir  :  The  important  treaty  of  peace  and  limits  between 
Costa  Eica  and  Nicaragua,  concluded  at  San  Jose,  having 
been  consummated  at  the  city  of  Kivas,  on  the  26th  of  April 
last,  according  to  the  record  of  the  exchange  of  ratifications 
of  that  date,  the  undersigned  Plenipotentiary  of  Salvador  has 
the  pleasure  to  inform  you  of  his  arrival  in  this  capital  for 
the  purpose  of  cordially  greeting  the  Nicaraguan  Govern- 
ment, congratulating  it  for  the  settlement  of  the  grave  questions 
which  were  pending  between  it  and  Costa  Rica,  and  giving 
notice  of  the  withdrawal  of  this  legation  to  the  capital  of  Sal^ 
vador,  where  it  will  report  to  its  Government  the  happy  re- 
siilt  obtained  hy  the  undersigned  Minister  in  his  dealings  with 
the  Republics  of  Nicaragua  and  Costa  Rica. 

In  taking  his  leave,  it  is  exceedingly  gratifying  to  the  un- 
dersigned to  set  forth  that  his  heart  wishes  with  the  greatest 
vehemence  that  the  present  social  welfare  of  the  Nicaraguan 
people,  the  domestic  and  foreign  politics  of  her  Government, 
and  her  well-founded  hopes  of  improvement  in  every  respect, 
be  each  day  more  and  more  improved  and  increased.  Happy 
Salvador,  if  she  succeeds  in  seeing  Nicaragua  great  and  pros- 
perous !  May  the  Supreme  Ruler  of  Nations  enlighten  the 
august  assembly  now  engaged  in  framing  the  political  con- 
stitution of  this  Republic  !  May  Divine  Providence  be  boun- 
tiful in  the  assistance  which  the  Government  needs  for  the 
better  ruling  of  the  people  whose  destinies  are  commended 
to  it !  These  are  the  wishes  which  Salvador  wiU  always  make 
14 


210 

for  Nicaragua,  whora  she  considers  as  her  sister,  and  whom 
she  has  defended. 

This  Legation,  which  acknowledges  with  gratitude  the 
kind  attentions  and  honors  which  the  Nicaraguan  people 
and  Government  have  tendered  to  it,  wishes,  also,  to  record 
here,  not  only  the  said  feeling,  but  also  its  fervent  wishes  that 
the  Government  may  always  find  in  the  people  a  powerful 
support,  and  the  people  in  the  Government  a  paternal  ad- 
ministration, such  as  is  now  seen  in  Nicaragua,  with  pleasure 
to  Central  America  and  satisfaction  to  the  world. 

Animated  by  this  desire,  the  Minister  of  the  Republic  of 
Salvador  takes  leave  of  the  Hon.  Senor  Juarez,  and  assures 
him  of  the  high  esteem  with  which  he  subscribes  himself  his 
most  attentive  and  obedient  servant, 

PEDRO  R.  NEGRETE. 

[From  the  "  Gaceta  de  Nicaragua,"  No.  15,  May  8,  1858]. 


211 


No.  13. 

Answe?'  to  the  letter  of  leave-taking  of  Col.  Negrete. — He  is 
called  apostle  of  peace. — Solemn  and  effusive  expression  of 
gratitude  tendered  to  Salvador. 

Depaetment  of  Foreign  Kelations  of  the 

Supreme  Government  of  the  Kepublic, 
Managua,  May  7,  1858. 

To  His  Excellency  Col.  Don  Pedro  E.  Negrete, 

Minister  Plenipotentiary  of  the  Government  of  Salvador 
near  the  Governments  of  Nicaragua  and  Costa  Rica. 

Sir  :  With  the  sublime  satisfaction  of  an  apostle  of  peace, 
Your  Excellency  returns  to  your  country  full  of  the  noble 
pleasure  of  having  succeeded  in  corresponding  both  to  the 
confidence  of  your  Government  and  the  founded  expectations 
of  the  Governments  of  Nicaragua  and  Costa  Kica. 

Thirty-four  years  of  disagreement^  or  of  hadly  disguised 
animadversion,  were  sufficient  to  give  Mrth  and  strength  to  the 
most  pernicious  enmity  hetween  these  two  sister  Hep  allies  ;  hut 
the  good-will  of  the  Government  of  Salvador,  and  the  prompt  and 
most  efficient  action  of  Your  Excellency  at  the  most  timely  oc- 
casion, profiting  hy  the  favorable  disposition  in  which  the  re- 
spective Presidents  found  themselves,  succeeded  in  dispelling 
in  one  day  the  ominous  clouds  which  for  more  than  one-third 
of  a  century  had  heen  gathering. 

My  Government,  deeply  grateful  to  the  Government  of  Sal- 
vador and  to  the  person  of  Your  Excellency,  wishes  to  express 
its  gratitude  in  the  present  despatch  in  order  that  it  may  enter 
into  the  immortal  kingdom  of  histoi^y  and  he  rememhered  hy 
future  generations. 

My  Government  wishes  for  the  Eepublic  of  Salvador  the 
most  perfect  peace  and  harmony  with  the  other  nations  of 
Central  America,  and  all  others  with  which  it  holds  diplo- 
matic relations,  but  if,  unhappily,  that  peace  and  harmony 


212 

should  ever  be  disturbed,  the  Government  of  Your  Excellency 
can  always  count  upon  the  mediation  of  mine  until  reaching 
such  success  as  desired. 

His  Excellency  the  President  wishes  you  a  happy  voyage, 
and  a  long  and  prosperous  life  ;  and  I  pray  Your  Excellency 
to  consider  my  own  sentiments  to  be  identical  to  those  I  have 
just  expressed  in  the  name  of  the  Chief  Magistrate,  whose 
organ  I  have  the  honor  to  be.  I  further  pray  Your  Excel- 
lency to  allow  me  to  offer  with  great  respect  the  considera- 
tion with  which  I  subscribe  myself,  your  humble  and  obedient 
servant, 

GREGOKIO  JUAEEZ, 

[From  the  "  Gaceta  de  Nicaragua,"  No.  15,  May  8,  1858.] 


213 
No.  14. 

Editorial  of  the  "  Gaceta  de  Nicaragua "  subsequent  to  the 
official  leave-taking  of  Sehores  Don  Juan  Rafael  Mora  and 
Col.  Negrete. —  The  latter  is  promoted  to  the  rank  of  General 
as  a  reward  for  his  services. —  The  Nicaraguan  people  feel 
jubilant  for  the  friendly  relations  between  Costa  Rica  and 
Nicaragua. 

Interior. 

The  President  and  Ministers  Juarez,  Cortez,  Jerez,  and 
Negrete  arrived  in  this  city  on  the  4th  instant  highly  satisfied 
all  of  them  with  the  President  of  Costa  Rica,  with  his  Min- 
ister, Senor  Toledo,  and  with  all  the  persons  who  accompanied 
them. 

Subsequently  we  have  been  informed  that  the  latter  re- 
turned to  their  country  no  less  pleased  with  Nicaragua;  and 
this  reciprocity  cannot  but  fill  us  with  joy ^  since  we  are  satis- 
fied that  the  hands  which  7iow  have  been  grasped  have  not  been 
grasped  in  vain,  and  that  the  promises  of  eternal  peace  and 
friendship  which  have  been  made  are  sincere^  and  due  to  such 
convictions  and  faith  as  are  seldom  seen  to  preside  over  treaties 
of  peace  and  alliance  among  nations. 

Col.  Negrete  was  rewarded  by.  the  Government  with  the 
commissio7i  of  Brigadier- General,  v)hich  he  deserved  for  his 
services  in  the  campaign  against  the  filibusters,  as  well  as  for 
those  which  he  has  just  rendered'  i?i  his  capacity  of  mediator 
between  Nicaragua  and  Costa  Rica.  This  gentleman  returned 
to  his  country  on  the  6th  instant,  after  having  remained  two 
days  in  this  city. 

Senor  Jerez  left  also  for  Leon  to  join  his  family  and  enjoy 
some  rest  after  the  arduous.^  but  very  useful^  labors  per form^ed 
by  him,  and  as  soon  as  possible  he  will  return  from  there  and 
place  himself  by  the  side  of  the  Administration  which  so 
highly  appreciates  his  services.     *     -5^     -x- 

[From  the  "  Gaceta  de  Nicaragua,"  No.  15,  May  8,  1858.] 


214 


No.  15. 


Spirit  of  Concord  which  presided  over  the  treaty. — Evident 
necessity  and  advisahility  that  it  shotdd  he  concluded. — Facul- 
ties of  the  Govermnent  to  approve  it. — Final  character  of  the 
treaty.— Identical  position  of  Costa  Rica  and  Nicaragua. 

The  "Gaceta." 

It  is  at  all  times  a  duty  to  strengthen  the  sovereignty  and 
independence  of  the  nation,  because  it  is  upon  these  condi- 
tions that  the  life  of  the  State  depends.  Among  those  dis- 
putes which  either  directly  or  indirectly  affect  said  sover- 
eignty and  independence,  those  of  limits  are  to  be  considered ; 
and  for  this  reason  their  settlement  is  necessary  to  secure  solid 
peace  with  the  neighbors  and  remove  the  obstacles  which  'might 
oppose  the  free  development  of  comrnerce^  industry^  and  prog- 
ress^ since  it  is  well  known  that  such  disputes  are  a  fruitful 
source  of  evils  of  the  worst  character.  Such  questions  pro- 
mote uneasiness  and  alarm  among  the  bordering  people,  give 
birth  to  rivalries,  beget  national  hatred,  and  produce  either 
a  silent  war  of  diplomatic  hostilities  constantly  embarrassing 
the  progress  of  the  countries,  or  an  open  conflict  in  which 
muskets  and  cannons  take  the  place  which  ought  to  have  been 
reserved  exclusively  for  reason  and  justice.  When  such  dif- 
ferences arise,  the  bordering  States  contending  with  each 
other,  although  united  by  the  contiguity  of  the  soil  and  by 
the  propinquity  of  their  towns  and  cities,  become  so  separated 
as  to  desire  the  complete  destruction  of  each  other. 

Unfortunately,  Nicaragua  and  Costa  Eica  had  been  for  a 
long  time  laboring  under  the  disadvantages  of  such  dissen- 
sions without  finding  a  way  of  settling  their  differences, 
which  day  after  day  grew  greater  and  worse,  and  went  as  far 
as  to  initiate  a  fratricidal  war,  precisely  at  that  moment  in 
which  the  filibusters  prepared  themselves  for  a  new  invasion, 
and    carry   on   their  plans  of   robbery  and   extermination. 


215 

Reason  and  patriotism  demanded  all  kinds  of  sacrifices  to  he 
made  to  re-estahlish  harmony  heiween  two  neighboring  Repub- 
lics threatened  by  a  common  enemy  ;  and  reason  and  patriot- 
ism have  triumphed  at  Rivas  on  the  26^/i  of  April  instant,  on 
xohich  day  His  Excellency^  the  President  of  the  Republic^ 
Gen.  Don  Tonids  Martinez,  approved  of  ayid  ratified  the  treaty 
of  limits^  celebrated  by  the  Ministers  Plenipotentiary  of  Nic- 
aragua and  Costa  Rica,  General  Don  Jose  Maria  Cahas\  and 
General  Don  Maximo  Jerez.  His  Excellency  put  an  end  to 
ancient  and  ruinous  questions,  settling  them  by  a  cowproniise, 
thus  strengthening  the  bonds  of  fraternity  which  unite  us 
together,  and  enabling  us  to  meet,  united,  stronger,  and 
mightier,  the  depredators  of  our  country,  who  by  their  un- 
exampled iniquities  are  the  scandal  of  civilization. 

The  President  of  Nicaragua  has  ratified  the  Jerez-Cahas 
treaty,  usi7ig  the  faculties  which  were  vested  in  him  by  Legis- 
lative Decree,  No.  22,  autho7'izing  him  to  do  all  that  he  might 
deei-n  to  be  advisable  for  the  defence  of  the  sovereignty  and  inde- 
pendence of  the  nation.  As  the  country  cannot  successfully 
undertake  this  defence,  without  unity  of  action  on  the  part  of 
all  its  mernbers,  it  was  necessary  to  eradicate  completely  every 
element  which  might  prevent  intimacy  from  being  established, 
and  would  maintain  discord  betv^een  two  sister  countries.  The 
xnediation  of  Salvador  has  had  much  part  in  such  a  happy 
result,  and  it  has  been  exercised  with  zeal,  activity,  and 
brilliancy  by  Don  Pedro  Eomulo  Negrete,  the  Commissioner 
sent  to  that  effect. 

Henceforth,  Nicaragua  and  Costa  Rica  will  march  in  per- 
fect harmony,  and  Central  America  will  enjoy  this  benefit, 
which  will  certainly  appall  all  those  who  took  advantage  of 
our  dissensions  in  the  same  way  as  a  rich  mine  is  worked  by 
avarice  and  ambition.  Our  readers  will  find  elsewhere  in 
this  paper  the  full  text  of  the  treaty,  beginiiing  of  our  concord^ 
commencement  of  happiness  and  progress  for  the  nation, 
and  by  perusing  it  they  will  be  convinced  of  the  sincere 
patriotism  of  the  two  Presidents,  Don  Rafael  Mora  and  Don 


216 

Tom  as  Martinez,  who  have  shown  their  good- will  for  the 
salvation  .of  Central  America,  and  for  securing  that  this  beau- 
tiful portion  of  the  world  might  march  in  peace  to  fulfill  the 
high  destinies  to  which  it  is  called. 

Having  in  view  the  same  purposes,  the  two  Presidents  have 
adjusted  in  their  interview  at  Eivas  a  treaty  of  commerce  and 
alliance  which  satisfies  the  mercantile  necessities  of  both 
countries  and  makes  them  combine  in  cases  of  war,  whether 
filibuster  or  any  other  kind.  They  likewise  signed  another 
tripartite  convention  with  the  Minister  mediator,  in  which  the 
representatives  of  the  three  countries,  namely,  Salvador,  Nic- 
aragua, and  Costa  Rica,  come  closely  together  and  secure 
their  common  efforts  for  the  defence  of  the  country  in  these 
calamitous  times  when  in  order  to  live  it  is  necessary  to  be 
mighty  and  powerful. 

Such  a  great  benefit  will  in  the  future  be  derived  from  the 
timely  and  important  visit  that  the  President  of  Costa  Rica 
paid  to  the  President  of  Nicaragua  at  the  City  of  Rivas. 
Both  personages  took  leave  of  each  other  in  the  most  perfect 
understanding,  and  both  of  them  animated  by  the  most  phil- 
anthrophic  sentiments  in  favor  of  the  Republics  whose  des- 
tinies have  been  commended  to  their  patriotic  zeal. 

,     fFfom  Llie  "  Gaceta  de  Nicaragua,"  No.  15,  May  8,  1858.] 


217 


No.  16. 


The  treaty  of  xipril  15, 1858,  is  communicated  to  the  friendly 
Governments  as  a  happy  termination  of  the  protracted  diffi- 
culties hetween  Costa  Rica  and  Nicaragua. 

No.  29.  Department  of  Foreign  Eelations 

OF  the  Eepublic  of  Costa  Eica, 
National  Palace,  San  Jose,  May  12,  1858. 
Mr.  Minister  :  His  Excellency  the  President  of  this  Ee- 
public, being  determined  to  employ  all  the  means  within  his 
reach  to  set  at  rest  all  questions  pending  with  the  neighboring 
Republic  of  Nicaragua^  and  finally  settle  all  business  pending 
between  both  Eepublics,  decided  to  make  a  trip  to  Nicaragua 
and  pay  a  visit  to  the  President  thereof.  General  Don  Tomas 
Martinez,  settling  thereby  with  him  personally  all  the  said 
questions  and  business,  strengthening  the  bonds  of  union 
which  naturally  exist  among  the  nations  of  Central  America, 
and  devising  some  means  of  strengthening  that  union  and 
defending  the  territory  and  independence  of  the  same  when- 
ever threatened.  At  the  very  moment  in  which  His  Excel- 
lency the  President  was  preparing  to  leave  this  Eepublic, 
General  Jerez  presented  himself  at  this  capital  as  Envoy 
Extraordinary  and  Minister,  sent  by  the  Government  of  Nic- 
aragua, this  having  been  due  in  part  to  the  patriotic  zeal  and 
solicitude  of  Col.  Don  Pedro  E.  Negrete,  who,  in  his  capacity 
of  Minister  mediator,  had  been  accredited  near  the  Govern- 
ments of  the  two  contending  Eepublics,  who  had  arrived  at 
the  moment  in  which  the  Assembly  of  Nicaragua  had  rejected 
the  last  arrangement  celebrated  at  Eivas  by  Commissioners 
of  this  Eepublic.  Senor  Negrete,  after  having  been  received 
in  public  audience  by  this  Government,  and  recognized  in  his 
diplomatic  capacity,  deemed  it  advisable  to  return  to  Nic- 
aragua and  urge  the  sending  by  her  Government  of  the  Com- 
missioner whom  it  had  offered  to  accredit.     In  consequence 


218 

of  all  these  steps  a  meeting  could  take  place  of  ministers 
fully  authorized  to  settle  the  pending  questions,  principally 
the  one  about  territorial  limits.  It  was  in  this  way  that  the 
treaty  of  April  15,  a  competent  number  of  printed  copies  of 
which  I  have  the  honor  to  enclose,  could  be  celebrated ;  and 
that  treaty  was  ratified  hy  His  Excellency  General  Martinez, 
President  of  Nicaragua,  in  virtue  of  the  full  authority  which 
the  Constituent  Assembly  of  that  Hepuhlic  had  given  himi 
for  that  purpose.  The  said  treaty  has  been,  therefore,  and 
will  continue  to  be,  a  substantial  foundation  of  peace  and 
union  between  these  two  bordering  Republics,  and  it  gave 
occasion  to  a  subsequent  treaty  of  peace,  friendship,  and 
commerce,  which  was  celebrated  at  Rivas  between  the  two 
Presidents  of  Nicaragua  and  Costa  Rica,  assisted  by  their 
I'espective  Secretaries  of  State,  a  copy  of  which  I  have  the 
honor  to  accompany  to  you,  and  which  in  due  time  will  be 
submitted  to  the  respective  legislatures  for  the  proper  ratifi- 
cation. 

Another  treaty  of  defensive  alliance  was  also  celebrated  at 
Rivas,  and  to  it  Don  Pedro  Romulo  Negrete,  the  Minister  of 
Salvador,  was  a  party  ;  and,  as  this  treaty  is  to  be  submitted 
to  the  Governments  of  Guatemala  and  Honduras,  I  have  the 
honor  to  send  to  you  an  authorized  copy  of  the  same,  as  di- 
rected by  Article  IV  of  the  same  treaty. 

Information  received  by  the  President  of  this  Republic 
about  a  new  filibustering  expedition  of  certain  importance 
and  other  pressing  circumstances  compelled  him  not  to  con- 
tinue his  voyage  to  the  capitals  of  the  other  sections  of  Cen- 
tral America  and  postpone  his  visit  to  them  until  another 
more  propitious  occasion.  In  the  meantime  His  Excellency 
feels  exceedingly  satisfied  with  the  advantage  which  his  visit 
to  Nicaragua  has  produced,  not  only  as  far  as  these  two  Re- 
publics are  concerned,  but  in  regard  to  the  common  benefit 
of  the  whole  of  Central  America,  since  this  Government  hopes 
that  the  great  steps  that  have  already  been  taken  to  secure 
the  future  welfare  of  the  Central  American  States  will  not  be 


219 

in  vain,  and  that,  if  the  immense  results  which  the  said  steps 
must  produce  are  accomplished,  they  will  respond  to  the  se- 
curing of  the  integrity  and  independence  of  the  territory,  the 
salvation  of  its  sovereignty  and  its  liberties,  and  the  pros- 
perity which  is  incumbent  to  the  fertility  of  its  soil  and  its 
geographical  position. 

With  such  a  happy  opportunity,  I  have  the  honor  to  as- 
sure you  the  distinguished  consideration,  esteem,  and  respect 
with  which  I  subscribe  myself  your  attentive  servant, 

NAZAEIO  TOLEDO. 

To  His  Excellency  The  Minister  of  Foreign  Eelations  of 
the  Eepublic  of  Guatemala. 


No.  17. 

Validity  of  the  Treaty. 
No.  30.  Department  of  Foreign  Eelations 

OF  THE  EePUBLIC  OF  CoSTA  KiCA, 

National  Palace,  San  Jose,  May  15,  1858. 

Mr.  Minister  :  I  have  the  honor  to  reply  to  your  estima- 
ble despatch  of  the  3d  of  April,  the  contents  of  which  I 
communicated  to  His  Excellency  the  President  of  this  Re- 
public. The  feelings  which  animate  your  Government  for 
the  peace,  unity,  and  prosperity  of  these  bordering  sister 
Republics  are  extremely  worthy  and  proper  in  a  Central 
American  Government ;  and,  fully  agreeing  with  such  gen- 
erous sentiments,  His  Excellency  the  President  of  this  Re- 
public, wishing  to  take  every  step  which  might  be  conducive 
to  the  final  settlement  of  the  questions  pending  between  lYic- 
aragiia  and  Costa  Rica^  decided  to  go  personally  to  confer 
with  His  Excellency  Don  Tomas  Martinez,  the  President  of 
Nicaragua,  and  try  not  only  to  put  an  end  to  the  diiference 
between  the  two  countries,  but  also  prove  by  this  example, 
the  first  one  ever  given  in  the  political  history  of  Central  Amer- 
ica, his  cordial  wishes  for  the  good  intelligence  and  intimate 
relations  between  the  two  neighboring  countries.  But  in  the 
moment  of  starting  on  the  voyage  already  announced.  Gen- 
eral Jerez  presented  himself  in  this  capital  in  the  capacity 
of  Envoy  Extraordinary  of  the  Government  of  Nicaragua, 
and  in  company  with  Col.  Don  Pedro  Romulo  Negrete,  who 
had  the  kindness  to  go  from  here  to  Nicaragua  and  act  in 
this  matter  as  mediator  in  representation  of  the  Republic  of 
Salvador.  To  all  these  patriotic  steps  it  has  been  in  part  due 
that  the  treaty  of  the  15th  of  April  was  celebrated,  and  I 
have  the  honor  to  send  to  you  with  this  note  a  sufficient 
number  of  printed  copies  thereof. 

The  visit  which  His  Excellency  the  President  of  this  Re- 
public paid  to  Nicaragua  on  the  22d  of  April  ultimo  had  the 


221 

good  effect,  not  only  of  causing  the  arrangement  of  all  the 
pending  questions  between  both  Republics  to  be  terminated, 
but  also  of  strengthening  the  fraternal  bonds  which  connect 
them  together,  and  establishing  on  solid  foundation  peace, 
friendship,  and  commercial  relations  among  their  people.  I 
have  the  honor  to  accompany  herewith,  as  a  consequence  of 
the  above-named  steps,  the  treaty  of  defensive  alliance  cele- 
brated between  the  two  Governments,  with  the  intervention 
of  that  of  Salvador  by  means  of  its  representative,  Col.  Don 
Pedro  R.  Negrete. 

His  Excellency  the  President  of  this  Republic  does  not 
doubt  that  the  said  treaty  will  be  accepted  by  your  own  Gov- 
ernment, and  also  by  that  of  Guatemala,  and  that  the  stipu- 
lations which  it  contains  will  serve  as  preliminary  basis  for 
other  and  more  interesting  agreements  which  may  unite  again 
the  people  of  Central  America  and  make  them  mighty  in 
their  union. 

Availing  of  such  a  plausible  occasion,  I  have  the  honor  to 
subscribe  myself  your  obedient  servant, 

NAZARIO  TOLEDO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Government  of  Honduras. 


222 


No.  18. 

The  Constitution  of  Nicaragua  declares  that  the  Nicaraguan 
territory  horders  on  the  south  hy  the  Republic  of  Costa  Rica. 
—  The  treaty  of  limits  is  raised  to  the  character  of  fundamen- 
tal law. 

POLITICAL  CONSTITUTION. 
(Promulgated  August  19,  1858). 

Chapter  I. 

Cf  the  Republic. 

Article  1.  The  Republic  of  Nicaragua  is  the  same  which 
was,  in  ancient  times,  called  the  Province  of  Nicaragua, 
and,  after  the  independence,  State  of  Nicaragua.  Its  ter- 
ritory borders  on  the  east  and  northeast  bv  the  sea  of  the 
Antilles ;  on  the  north  and  northwest  by  the  State  of  Hon- 
duras ;  on  the  west  and  south  by  the  Pacific  Ocean  ;  and  07i 
the  southeast  by  the  Republic  of  Costa  Rica.     The  laws  on 

SPECIAL  LIMITS  FORM  PART  OF  THE  CONSTITUTION.      *      *      * 

Article  3.  The  territory  shall  be  divided  for  the  differ- 
ent purposes  of  the  administration  of  the  Government  into 
such  departments,  districts,  and  sections  as  the  Constitution 
and  the  laws  provide  for. 

[From  *'  La  Gaceta  de  Nicaragua,"  No.  31,  August  28,  1858.] 


223 


No.  19. 


The  value  and  force  of  the  treaty  of  liinits  is  recognized^  and 
one  of  its  provisions  is  thus  carried  into  effect. 

National  Palace, 
Managua,  April  13,  1859. 
To  the  Minister  of  Foreign  delations  of  the  Government  of 
Costa  Mica. 
Sir  :  I  have  the  honor  to  enclose  for  your  information  an 
authorized  copy  of  the  Convention  made  on  the  12th  instant 
between  myself  and  Mr.  Felix  Belly,  director  of   the  enter- 
prise of  the  canal  in  regard  to  provisional  transit,  and  this  I 
do,  for  the  purpose  of  complying  with  the  engagement  con- 
tracted   BY    THIS    EePUBLIC    WITH    THE    EePUBLIC   OF   CoSTA 

EicA  IN  Article  VIII  of  the  treaty  of  limits  of  April 
15  OF  LAST  YEAR,  in  order  that  when  the  opinion  of  the 
Government  of  Costa  Eica  is  given  final  action  may  be  taken 
upon  it. 

I  have  the  honor  to  offer  to  you  the  sentiments  of  con- 
sideration and  esteem  with  which  I  subscribe  myself  your 
attentive  servant, 

PEDEO  ZELED6N. 


224: 


No.  20. 

Costa  Rica  is  recognized  as  a  party  to  the  contract  of  the 
Interoceanic  Canal,  and  its  acquiescence  is  asked  to  make  cer- 
tain modifications  in  it. 

Department  of  Foreign  Kelations  of  Nicaragua, 
National  Palace, 

Managua,  Ajpril  16,  1859. 
Mr.  Minister  :  As  I  have  told  you  before,  the  contract 
about  the  canal,  celebrated  at  Eivas  on  the  1st  of  May  of 
the  preceding  year,  was  submitted  to  the  ratification  of  the 
Chambers,  which  have  granted  it  with  the  amendments  and 
additions  which  appear  from  the  authorized  copy  herewith 
accompanied.  The  Government,  noticing  that  Nicaragua, 
Costa  Eica,  and  the  Company  are  parties  to  the  contract, 
and  that  each  one  of  them  has  to  ratify  it  before  it  takes 
effect,  and  that  the  amendments  and  additions  made  by  the 
Chambers  have  altered  it  in  such  a  way  as  to  require  new 
ratification  by  the  Congress  of  Costa  Kica,  and  acceptance  by 
Mr.  Felix  Belly  ;  noticing  furthermore  that  the  contract  has 
become  unpopular,  and  that  the  amendments  and  additions 
made  by  the  Chambers  have  given  rise  to  odious  interpreta- 
tions ; — deem  it  proper  to  confer  with  Mr.  Felix  Belly,  and 
to  enter  with  him  into  an  equitable  agreement,  and  granting 
him  the  temporary  permission  demanded  by  the  situation  for 
giving  lodgings  and  occupation  to  his  engineers,  laborers,  &c., 
in  the  San  Juan  river  and  the  lake,  all  of  which  is  reported 
to  your  Government  in  the  meantime,  in  order  to  obtain 

FROM    YOUR    EePUBLIC   THE    RATIFICATION   WHICH   IS   NECESSARY 
FOR   CARRYING  ON  THE  WORK. 

The  grantee  left  this  city  yesterday  satisfied  with  the  loy- 
alty of  the  Government,  and  decided  to  wait  for  the  above- 
named  ratification. 

In  consequence  thereof  the  Government  has  placed  its  exe- 


225 

QUATUE  to  the  contract  as  amended,  and  I  have  the  pleasure 
to  transmit  to  you  a  copy  thereof  for  the  purposes  above  in- 
dicated. 

Another  contract,  relative  to  the  steamer  "  Virgen,"  which 
the  Company  needs  to  charter,  has  been  celebrated  separately, 
and  in  due  time  it  was  submitted  to  the  ratification  of  the 
Government. 

The  Company  by  faithfully  and  earnestly  conducting  the 
work  will  re-establish  its  lost  credit,  and  if  the  transit  is 
granted  when  that  work  is  finished,  all  the  interests  will  be 
conciliated. 

I  have  the  honor  to  ofter  the  sentiments  of  my  esteem  and 
consideration. 

PEDEO  ZELEDON. 

To  The  Minister  of  Foreign  Kelations  of  the  Government 
of  the  Eepublic  of  Costa  Rica. 
15 


226 

No.  21. 

Official  despatch  acknowledging  that  the  Nicaraguan  territory 
ends  at  the  Salinas  Bay  as  declared  hy  the  treaty  of  limits 
of  1858. 

[seal].  National  Palace, 

Managua,  April  27,  1859. 

Sir  :  The  Prefect  of  the  Department  of  Rivas,  under  date 
of  the  23d  instant,  said  to  the  Government  as  follows :  *'  I 
have  positive  information  that  in  a  small  island  at  the  gulf 
OF  '  Las  Salinas  '  where  the  territory  of  the  Republic 
ENDS,  a  great  deposit  of  iron  and  other  metals,  taken  there 
by  the  filibusters  during  the  time  they  were  in  this  country, 
is  to  be  found.  That  deposit  was  concealed  under  a  large 
straw-roofed  cabin  which  subsequently  was  burned  by  cer- 
tain fishermen  ;  and  I  have  been  assured  that  a  French- 
man of  Liberia  arrived  there  awhile  ago  and  carried  away 
on  board  of  some  boats  several  tools  which,  when  taken  to 
his  city,  constituted  loads  for  three  beasts  of  burden." 

"  The  public  Treasury  of  Nicaragua  suffered,  no  doubt,  by 
this  ;  and  both  for  this  reason,  as  well  as  for  the  reason  that 
said  Island  is  on  vmters  belonging  exclusively  to  the  State ,  it 
corresponds  to  it  to  take  knowledge  of  the  facts." 

His  Excellency  the  President  has  directed  me  to  request, 
through  you,  the  President  of  your  Republic,  to  order  the 
authorities  of  Moracia  to  gather  and  safely  keep  the  iron  and 
other  metals  which  may  be  found  in  the  island  of  the  Gulf  of 
Las  Salinas,  in  order  that  upon  the  proper  notice  and  infor- 
mation of  the  expenses  incurred  in  the  operation  my  Govern- 
ment may  make  the  proper  indemnification  of  the  latter  and 
the  transfer  of  the  metal  to  where  it  may  be  proper. 

Trusting  that  your  Government  will  comply  with  the  re- 
quest herein  made,  I  have  the  honor  to  renew  to  you  the 
sentiments  of  esteem  with  which  I  am,  your  obedient  servant, 

PEDRO  ZELEDON. 

To  The  Minister  of  Foreign  Relations  of  the  Government 
of  Costa  Rica. 


227 


No.  22. 

The  Nicaraguan  Chambers  direct  Article  VI II of  the  Treaty 
of  limits  of  April  15,  1858,  ^6>  ^e  cow  plied  with^  and  the 
Executive  Power  carries  their  decision  into  effect. 

National  Palace, 

Managua,  May  7, 1859. 
Mr.  Minister  :  I  have  the  honor  to  acknowledge  the  re- 
ceipt of  your  estimable  communication  of  the  27th  of  April 
ultimo,  dated  at  Eivas,  enclosing  the  decree  issued  by  His 
Excellency  the  Captain  General,  President  of  the  Republic 
of  Costa  Eica,  approving  in  all  parts  the  contract  entered 
into  in  this  city  on  the  12th  of  the  same  month,  between  this 
Government  and  Messrs.  Felix  Belly  &  Co.,  granting  them 
exclusive  transit  through  the  San  Juan  river  and  Lake  of 
Nicaragua  to  the  Pacific,  a  contract  upon  which  the  Legis- 
lative Chambers  of  this  Republic  decided  to  hear  the 
opinion  op  the  Government  of  Costa  Rica,  as  required  ry 
Article  VIII  of  the  treaty  op  limits  adjusted  on  April  15 

OF  LAST  YEAR,  BETWEEN  NICARAGUA  AND  CoSTA  RiCA. 

The  above-named  contract  will  be  submitted  to  the  ratifi- 
cation of  the  Chambers  as  prescribed  by  the  Constitution, 
because  the  Government  has  authority  only  for  declaring 
the  transit  to  be  free  and  for  granting  it  to  companies  under 
this  and  other  basis  established  by  the  decree. 

The  loyalty  and  good  understanding,  which  are  due  to  the 
Government  of  Costa  Rica  and  to  the  interested  parties,  im- 
pose upon  me  the  duty  to  give  you  this  information,  and  at 
the  same  time,  I  have  the  honor  to  subscribe  myself, 
Your  attentive  servant, 

PEDRO  ZELEDON. 

To  The  Minister  of  Foreign  Relations  of  the  Supreme 
Government  of  Costa  Rica. 


228 


No.  23. 

Official  despatch  showing  the  validity  and  strength  of  the  Treaty 
of  Limits^  and  the  execution  thereof  hy  hoth  Republics. 

Department  of  Foreign  Kelations 

OF  the  Kepublic  of  Costa  Eica, 
National  Palace,  San  Jose,  May  16,  1859. 
Mr.  Minister  :    In  compliance  with  Article  VIII  of  the 
final  treaty  of  limits  between  this  Republic  and  yours,  and  by 
note  of  the  13th  of  April  instant,  you  have  been  pleased  to 
transmit  for  the  knowledge  of  this  Government  a  copy  of  the 
convention  of  provisional  transit  celebrated  between  you  and 
Mr.  Felix  Belly  on  the  12th  of  the  same  month. 

The  supreme  Government  of  your  country  has  been  already 
informed  that  the  Costa  Rican  Government  has  accepted  as 
far  as  it  is  concerned  the  above-named  convention ;  and  now 
nothing  new  is  to  be  added  to  said  acceptance. 
I  remain,  your  attentive  and  obedient  servant, 

NAZAEIO  TOLEDO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


229 


No.  24. 

Costa  Rica  a  party  to  the  contract  of  Interoceanic  Canal  ap- 
proves  modifications  made  thereto. 

No.  45.  Depaktment  of  Foreign  Kelations 

OF  THE  KePUBLIC  OF  CoSTA  KiCA, 

National  Palace,  San  Jose,  June  27,  1859. 

Mr.  Minister  :  In  answer  to  the  remarks  of  your  commu- 
nication of  the  7th  of  May  ultimo,  and  in  accordance  with 
the  contents  of  the  note  addressed  to  you  on  the  16th  of  May, 
No.  36,  the  undersigned  has  the  honor,  by  order  of  the  Presi- 
dent, to  transmit  to  you  a  copy  of  the  decree  enacted  by  the 
Congress  of  this  Republic  on  the  22d  instant,  approving  the 
amendments  and  additions  made  by  the  Chamhers  of  Nic- 
aragua to  the  contract  with  the  Atlantic-Pacific  Maritime 
Canal ^  made  at  Bivas  on  the  1st  of  May,  last  year. 

You  will  be  pleased  to  submit  this  decree  to  His  Excellency 
the  President  of  Nicaragua,  and  to  accept  the  testimony  of 
esteem  and  respect  with  w^hich  I  subscribe  myself  your  atten- 
tive and  obedient  servant, 

NAZAEIO  TOLEDO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


230 


No.  25. 

Despatch  showing  the  validity  and  strength  of  the  Treaty  of 
Limits,  and  its  execution. 

No.  44.  Department  of  Foreign  Kelations 

OF  the  Eepublic  of  Costa  Eica, 
National  Palace,  San  Jose,  June  27,  1859. 
Mr.  Minister  :  Senor  Don  Maximo  Jerez,  on  behalf  of  his 
Government,  and  in  compliance  with  Article  VIII  of  the 
Treaty  of  Limits,  transmitted  from  Punta  Arenas  the  new 
contract  of  transit  that  he  made  in  New  York  on  the  6th  of 
June  instant  with  the  Company,  or  branch  thereof,  which  was 
formerly  called  "American  Atlantic-Pacific  Maritime  Canal 
Co." 

*  -x-  *  -Sf  *  -Jt  -Jf 

SALVADOK  GONZALEZ. 

To  His  Excellency  The  Minister  of  Foreign  Kelations  of 
the  Kepublic  of  Nicaragua. 


231 


No.  26. 


The  Government  of  Nicaragua  asks  that  of  Costa  Rica  to  re- 
w,ove  its  custom  officers  from  the  La  Flor  river  ^  its  former 
frontier^  to  the  neio  limit  fixed  by  the  treaty  of  April  15, 
1858. 

[seal].  National  Palace, 

Managua,  August  3,  1859. 
Mr.  Minister:   The  Military  Governor  of    the  Southern 
Department  has  reported  to  the  Government  that  the  Custom- 
House  officers  of  your  Repiiblic  on  the  Nicaraguan  frontier  still 

CONTINUE  STATIONED,  AS  THEY  WERE  BEFORE,  AT  THE  La  FlOR 

RIVER,  exercising  authority  on  all  the  extent  of  the  Salinas  Bay 
up  to  Escameca,  where  there  is  a  military  post  of  this  Repub- 
lic, and  on  the  side  of  the  lake  as  far  as  the  Sapod  river  oppo- 
site to  Salgueros  ;  and  that  although  the  officer  commanding 
that  post  has  received  orders  to  avoid  all  disagreement  with 
the  Costa  Rican  custom  officers,  as  the  latter  interfere  with 
the  traffic,  and  even  have  confiscated  some  articles  at  the  La 
Flor  liver,  it  is  possible  that  some  question  affecting  private 
interests  may  also  require  the  action  of  the  Government. 

For  this  reason,  and  considering  that  the  former  limit  of 
THE  La  Flor  river  lies  this  side  of  the  middle  of  the  Oxdf 
of  Las  Salinas,  which  is  the  new  one  established  by  Ar- 
ticle II  OF  THE  TREATY  OF  ApRiL  15,  1858  ;  and  that  Sal- 
gueros is  not  found  on  the  straight  line  spoken  of  by  the 
same  article^  His  Excellency,  the  President  of  the  Repub- 
lic, desiring  to  avoid  a  conflict  which  might  injure  private 
interests,  and  also  being  disposed  to  establish  on  the  frontier 
the  proper  vigilance  to  avoid  sm^uggling,  which  is  done  there 
to  the  great  detriment  of  the  interests  of  the  Nicaraguan 
treasury,  taking  advantage  of  the  franchise  of  commerce 
which  the  Province  of  Moracia  and  the  port  of  Punta  Arenas, 
of  Costa  Rica  enjoy,  has  deemed  it  proper  to  call  the  atten- 


232 

tion  of  His  Excellency  the  President  of  your  Republic,  as  I 
do  now  through  you,  to  the  foregoing  facts,  and  request  him 
to  cmise  the  action  of  its  custom  service  to  he  reduced  to  the 

LIMITS  ESTABLISHED    BY    THE    TREATY    AFORESAID  ;     and   in    Case 

that  this  should  be  difficult,  owing  to  the  fact  that  the  divid- 
ing straight  line,  which  is  the  limit  on  that  side,  has  not  been 
yet  actually  drawn,  to  be  pleased  to  appoint  a  surveyor,  enjoy- 
ing his  confidence,  who,  in  union  with  the  one  appointed  by 
this  Government;  may  proceed  to  locate  the  said  line  before 
private  interests  are  further  affected  and  the  rigor  of  judicial 
action  is  resorted  to. 

I  have  the  honor  to  reiterate  to  you  the  sentiments  of  my 
greatest  esteem  and  consideration. 

PEDRO  ZELEDON. 

To   The  Minister  of  Foreign  Relations  of  the  Supreme 
Government  of  Costa  Rica. 


233 


No.  27. 


The  Government  of  Costa  Rica  is  invited  to  assist  that  of  Nic- 
aragua in  improving  the  port  of  Sa7i  Juan  del  Norte,  almost 
destroyed  hy  the  deviation  of  the  vmters  of  the  San  Juan 
river  into  the  hed  of  the  Colorado  river. 

Nicaragua  Department  of  Foreign  Eelations, 
National  Palace, 

Managua,  December  13,  1859. 

Mr.  Minister  :  Tlie  attention  of  the  Government  of  Nic- 
aragua has  been  forcibly  called  to  the  condition  of  the  po7't 
of  San  Juan  del  Norte,  which  has  been  filled  up  and  almost 
rendered  useless  on  account  of  the  sand  which  has  accumulated 
in  it  ever  since  its  waters  have  abundantly  flowed  into  the  chan- 
nel of  the  Colorado  river  ;  and  such  a  state  of  things  must  also 
demand  the  attention  of  Costa  Rica,  because  the  interest  of 
the  latter  in  this  subject  is  not  less  felt,  since  by  existing 
treaties  she  has  the  right  of  navigation  and  free  import 
from  there. 

The  inhabitants  of  the  town  named  Greytown  have  made 
an  effort  to  collect  subscriptions  and  do  such  work  as  possi- 
ble for  the  purpose  of  confining  the  waters  to  the  channel  of 
the  Bay  ;  and  the  Government,  in  spite  of  the  scarcity  of  the 
public  resources,  is  trying  to  raise  money  among  the  merchants 
of  the  Republic,  and  proposes  to  employ  all  the  convicts  of 
the  State  prison,  more  than  40  in  number,  to  carry  on  that 
work,  principally  by  closing,  by  means  of  palisades  or  other 
proper  works,  the  communication  between  the  San  Juan  and 
the  Colorado  rivers. 

For  such  a  purpose,  and  in  the  persuasion  that  Costa  Rica 
will  co-operate  with  pleasure  in  this  work,  I  have  been  in- 
structed to  invite  it  to  do  so,  and  I  hope  that  you  will  be 
pleased  to  set  forth  in  your  answer  in  what  way  such  assist- 
ance will  be  rendered,  it  being  preferable  to  a  great  degree 


234: 

that  the  said  assistance  be  pecuniary,  in  order  to  provide  for 
the  support  of  the  laborers  and  furnish  them  with  tools  and 
other  implements. 

I  pray  you,  Mr.  Minister,  to  submit  all  of  this  to  His 
Excellency  the  President  of  your  Bepublic,  to  communicate 
to  me  his  decision,  and  to  accept  the  sentiments  of  esteem 
and  consideration  with  which  I  subscribe  myself  your  very 
attentive  servant, 

PEDKO  ZELEDON. 

To  The  Minister  of  Foreign  Eelations  of  the  Kepublic  of 
Costa  Rica. 


235 


No.  28. 

Nicaragua  reminds  Costa  Rica  of  the  duty  imposed  upon 
her  hy  the  treaty  of  April  15,  1858,  to  defend  her  frontiers  at 
San  Juan  and  the  Bolarios  Bay. 

[seal].  National  Palace, 

Managua,  Septemher  5,  1860. 

Sir :  Your  Government  must  certainly  be  aware  that  Wil- 
liam Walker  lias  invaded  Central  America  ;  and,  as  it  is  prob- 
able that  that  bandit  may  attempt  some  operation  on  the 
side  of  the  river  of  San  Juan  del  Norte,  my  Government  has 
taken  such  steps  as  proper  to  protect  that  frontier  and  rein- 
force its  military  posts. 

But  as  according  to  the  treaty  of  April  15,  1858,  as 

READ  IN  its  IYtH  ArTICLE,  BOTH  YOUR  KePUBLIC  AND  THIS  OUGHT 

TO  TAKE  CARE  OF  THE  DEFENCE  OP  THAT  LINE,  my  Government 
expects  that  your  Government,  in  view  of  the  threatening 
danger,  will  comply  with  the  sacred  and  interesting  duty 
INCUMBENT  UPON  IT,  by  Sending  there  such  a  force  as  may  be 
necessary  to  protect  the  locality  and  repel  the  enemy  if  the 
invasion  should  take  place  through  that  point. 

My  Government  thinks  it  proper  to  inform  yours,  further- 
more, that  another  filibustering  expedition,  under  the  com- 
mand of  Henningsen,  an  old  comrade  of  Walker,  is  now 
being  organized  in  California,  and  that  it  is  very  probable 
that  they  intend  to  land  at  some  of  the  ports  on  the  Pacific 
coast,  for  which  reason  it  is  advisable  that  sufficient  forces 
are  sent  to  the  Salinas  Bay,  the  defence  of  which  is  also  e?i- 
trusted  to  the  Government  of  Costa  Rica. 

All  of  which  I  have  the  honor  to  communicate  to  you  by 
order  of  His  Excellency  the  President  of  this  Eepublic,  for 
the  purposes  above  referred  to,  hoping  that  you  will  be 


236 

pleased  to  communicate  to  me  the  decision  that  your  Govern- 
ment may  reach  on  the  subject. 

I  avail  myself  of  this  opportunity  to  offer  you  my  respects. 

HEKMDO.  ZEPEDA. 

To  The  Minister  of  Foreign  Kelations  of  the  Supreme 
Government  of  the  Republic  of  Costa  Rica. 


237 

No.  29. 
Execution  of  the  Treaty  of  Limits. 

San  Jos^,  January  25,  1861. 

Mr.  Minister  :  In  order  to  send  back  the  courier  ex  pro- 
feso,  whom  you  were  pleased  to  send  to  this  Republic,  the 
President  has  directed  me  to  tell  you  that,  as  he  has  to  consider 
the  contract  of  transit  i?i  compliance  with  the  stipulations  of  the 
Canas-Jerez  treaty,  he  has  decided  that  the  Costa  Rican  Com- 
missioner, who  shall  leave  for  your  Republic  within  a  very 
short  period,  should  be  the  bearer  of  the  said  contract  and 
of  the  decision  thereon  reached  'by  this  Government. 

With  this  I  leave  your  favor  of  the  10th  instant  answered, 
and  I  subscribe  myself  your  obedient  servant, 

A.  ESQUIVEL. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


238 


No.  30. 

The  Nicaraguan  Charnhers  direct  the  Executive  to  comply  with 
Art.  YIII  of  the  Treaty  of  Limits  of  April  15,  1858. 

National  Palace, 
Gkanada,  February  25, 1863. 
Mr.  Minister  :  The  contract  of  interoceanic  transit,  cele- 
brated between  the  Government  and  Don  Jos^  Rosa  Perez,  an 
authenticated  copy  of  which  I  have  the  honor  to  accompany, 
together  with  the  proposal  upon  the  same  subject  made  by 
Mr.  J.  E.  Russell,  having  been  submitted  to  the  Chambers  for 
ratification,  they  were  pleased  to  abstain  from  doing  so, 

AND  TO  DECIDE  IN  COMPLIANCE  WITH  ARTICLE  VIII  OF  THE 
TREATY  OF  ApRIL  15,  1858,  BETWEEN  THIS  REPUBLIC  AND  YOURS, 
THAT  THE  SAID  DOCUMENTS  SHOULD  BE  RETURNED  TO  THE  EX- 
ECUTIVE IN  ORDER  THAT  THEY,  AS  WELL  AS  ANY  OTHER  PROPOSAL 
WHICH  MAY  BE  MADE,  SHOULD  BE  SUBMITTED  TO  THE  GOVERN- 
MENT OF  Costa  Rica  for  the  purpose  of  having  its  opinion 

ON  THEM. 

In  compliance  with  the  above  decision,  I  have  the  honor 
to  submit  to  you  the  said  contract  and  proposal  for  the 
knowledge  of  His  Excellency  the  President,  and  hope  you 
will  be  pleased  to  communicate  to  me  in  due  time  his  opinion 
on  them. 

I  have  the  honor  to  subscribe  myself  your  attentive 
servant, 

PEDRO  ZELEDON. 

To  The  Minister   of  Foreign  Relations  of  the  Supreme 
Government  of  Costa  Rica. 


239 


No.  31. 


The  strict  covipliance  with  the  treaty  of  limits  demonstrated. 
—  The  Government  of  Costa  Rica  asks  the  rights  vested  in  it 
hy  Ai'ticle  VI  of  a  contract  of  transit  to  he  encpressly  secured. 

To  His  Excellency  the  Minister  of  foreign  Relations  of  the 
Republic  of  Nicaragua. 
Sir  :  With  your  estimable  note  of  the  25th  of  February 
ultimo  this  department  has  received  a  copy  of  the  contract  of 
transit  celebrated  between  the  Government  of  your  Kepublic 
and  Don  Jose  Kosa  Perez,  and  also  the  subsequent  proposal 
of  Mr.  John  E.  Russell,  all  of  which  has  been  transmitted  to 
this  Government  in  order  that  it  may  express  its  opinion,  as 

PROVIDED  BY  ARTICLE  YIII  OF  THE  TREATY  OF  LIMITS  OF  APRIL 

15,  1858. 

I  hastened  to  give  information  of  your  note  to  His  Excel- 
lency the  President  of  the  Republic,  who,  after  having  care- 
fully examined  the  documents  referred  to,  has  directed  me 
to  tell  you  in  answer,  as  I  have  the  honor  to  do,  what  follows  : 

Considering  that,  according  to  the  above-named  stipulation 
of  the  treaty  of  April  15,  1858,  the  vote  of  Costa  Rica  is  un- 
derstood to  he  advisory  in  all  matters  which  do  not  directly  af- 
fect the  natural  rights  of  this  Repuhlic,  nor  those  which  ema- 
nate from  her  sovereignty^  or  the  ahsolute  rights  of  property^  or 
of  the  common  use  that  it  has  over  certain  places  at  the  port 
of  San  Juan  del  Norte,  the  San  Juan  river,  the  Lake,  and  the 
Salinas  Bay,  my  Government  has  deemed  it  advisable,  and 
trusts  that  your  Government  will  consider  it  in  the  same  way, 
that  the  opinion  or  vote  should  be  extended  to  some  other 
clauses  of  the  contracts,  although  they  do  not  directly  affect 
the  territorial  interests  of  Costa  Rica. 

The  spirit  of  Article  YIII,  and  the  reasons  which  were  con- 
sidered when  it  was  enacted,  were,  if  we  are  not  mistaken,  to 
provide  for  the  preservation  of  the  common  interests  in  all 


240 

cases  which  might  produce  complications  with  foreign  coun- 
tries, since  it  cannot  be  doubted  that  such  questions  affect 
and  endanger  the  two  Republics,  and  much  more  so  under 
the  influence  of  the  events  which  take  place  in  other  points 
of  Central  America. 

Under  this  point  of  view,  and  starting  from  the  remark  that 
the  compact  has  been  made  with  foreigners,  whose  claims,  as 
shown  by  experience,  may  produce  great  evils  and  an  inter- 
vention or  invasion  from  abroad  which  would  also  threaten 
the  neighboring  countries,  this  Government  is  of  the  opinion 
that,  in  a  contract  of  this  kind,  all  stipulations  which,  by  their 
consequences  or  by  their  language,  may  give  occasion  or  pre- 
text to  disputes  and  to  exaggerated  pretension  must  be  care- 
fully avoided,  and  it  is  for  this  reason  that  I  allow  myself  to 
call  the  attention  of  your  Government  to  the  following  sug- 
gestions : 

4f  -SS-  -5^  45-  *  *  * 

Article  8.  For  the  aake  of  clearness  it  seem.s  advisable  to 
maJce  express  mention  of  the  Treaty  of  Limits  of  April  15, 
1858,  saving  the  rights  which  Costa  Rica  has  hy  virtue  of  this 
treaty  over  the  port  of  San  Juan  del  Norte^  the  banks  of 
the  San  Juan  river,  and  the  Salinas  Bay,  and  the  free 
navigation  in  all  these  waters,  expressing  that  the  exclusive 
privilege  of  the  contractor  will  not  prevent  Costa  Rica  from 
establishing  in  the  same  waters  steam  navigation  for  the  com- 
7nerce  with  the  tHbutary  rivers  of  its  territory,  which  empty 
into  the  San  Juan  river  and  the  lake,  and  from  exercising 
territorial  sovereignty  in  all  cases  in  which  the  transit  company 
should  be  called  to  exeixise  some  act  of  adm^inistration,  use,  or 
commerce  vjithin  the  territory  of  the  said  Republic,  or  subject 
to  the  laws  and  authorities  of  the  same,  as,  for  instance,  in  the 
case  of  Article  9. 

#  *  *  *  *  *  * 

Article  17.  In  consideration  of  the  intimate  relations  of 
friendship  which  exist  between  this  Republic  and  yours,  and 
of  the  advantages  that  the  enterprise  of  transit  has  to  derive 


24:1 

from  its  frequent  trade  with  the  Costa  Kican  littoral,  it  seems 
to  be  equitable  that  the  grantee  should  show  in  favor  of  citi- 
zens of  Costa  Kica,  who  would  use  for  their  commerce  the 
means  of  transportation  and  communication  of  the  company, 
and  of  those  immigrants  who  would  come  in  number  of  no  less 
than  10  to  settle  in  Costa  Kica,  the  same  liberality  and  the 
same  franchises  as  granted  to  others. 

If  this  Government  should  determine  to  send  European 
mail  by  the  way  of  San  Juan  del  Norte  and  Sarapiqui,  the 
grantee  will  carry  the  said  mail  subject  to  the  postal  conven- 
tions in  force  and  in  accordance  with  Article  X  of  the  pro- 
ject of  contract,  and  XI  of  the  proposal  of  Mr.  Kussell. 

The  ideas  which  I  have  the  honor  to  set  forth,  are  also 
applicable  to  the  proposals  made  by  the  representative  of 
Messrs.  James  M.  Brow  and  George  G.  Hobson,  of  New  York, 
it  being  understood  that,  in  case  your  Government  gives  pref- 
erence to  the  Eussell-Perez  contract,  it  will  be  necessary  to 
render  the  language  of  the  provision  clearer  and  fuller  in  or- 
der to  mark  well  the  principal  points  of  difference  between 
them.  In  everything  else  it  is  to  be  supposed  that  the  pro- 
posing party  will  accept  the  same  basis  as  adopted  in  the 
former  contract. 

These  are  the  remarks  which  this  Government  submits  in 
regard  to  the  contracts  which  the  Nicaraguan  Government 
has  submitted  to  it ;  and  now  the  only  thing  left  to  me  is  to 
assure  Your  Excellency  that  the  above  remarks  have  been 
made  in  the  best  spirit  and  looking  exclusively  at  the  com- 
mon good.  On  the  other  hand,  this  Government  is  sincerely 
grateful  for  the  sentiments  which  yours  entertains  in  favor 
of  the  faithful  and  strict  fulfilment  of  the  compacts  and  for 
the  confidence  that  it  shows  and  the  loyalty  and  righteous- 
ness of  our  relations  with  your  Eepublic,  our  ally  and 
sister. 

I  take  advantage  of  this  opportunity  to  subscribe  myself, 
Your  very  attentive  servant, 

FEANCISCO  M.  IGLESIAS. 
Apeil  1,  1863. 
16 


242 


No.  32. 


The  Government  of  Nicaragua  asks  for  some  forces  to  he  situ- 
ated at  Sarapaqui  (a  confluent  of  the  San  Juan  river,  on 
the  I'ight  hank).  * 

GOVEBNMENT  HoUSE, 

Granada,  April  23,  1863. 

Mr.  Minister  :  Mr.  Felix  Belly,  who  has  recommended 
himself  so  much  by  reason  of  his  former  action  in  Central 
America,  has  submitted  to  this  Government  a  project  of  inter- 
oceanic  transit  and  steam  navigation  in  the  interior  of  the 
Eepublic,  an  authorized  copy  of  which  I  have  the  honor  to 
enclose  to  ^o\\.,for  the  purposes  of  Article  VIII  of  the  treaty 
of  April  lb,  1858. 

With  reference  to  your  estimable  despatch  of  the  1st  in- 
stant, relative  to  the  difficulties  that  lately  arose  between  the 
Government  and  the  Central  American  Transit  Co.,  I  must 
inform  you,  for  the  knowledge  of  your  Government,  that  two 
agents  of  the  said  company,  duly  authorized  by  it  to  revali- 
date the  contract  which  the  Government  had  declared  to  be 
void,  have  just  arrived  in  this  city.  Up  to  this  date  the  Gov- 
ernment has  not  deemed  it  advisable  to  listen  officially  to  the 
proposals  that  they  have  come  to  make,  its  reasons  to  do  so 
being,  1st,  that  they  have  not  yet  paid  tiie  sums  due  to  this 
Eepublic  as  tolls  for  passengers ;  and,  2d,  because  the  Gov- 
ernment thinks  that,  if  not  all,  some,  at  least,  of  the  officers 
of  the  company  are  accessories  to  the  piratical  and  filibuster 
outrage  perpetrated  on  the  7th  instant  at  the  La  Virgen 
Bay,  on  board  the  steamer  San  Juan,  unfortunately  in  con- 
nivance with  forces  of  Honduras  and  Salvador ;  but,  as  in 
the  difficult  situation  in  which  Nicaragua  finds  herself  at 
present  it  is  possible  for  the  company  to  do  some  violence 
to  the  rights  of  this  Eepublic,  the  Government  may  perhaps 
be  compelled  by  pure  necessity  to  enter  with  it  into  some 
equitable  arrangement  of  temporary  character,  but   by  no 


243 

means  final,  which,  while  bridging  over  the  difficulties  of  the 
present  moment,  enables  the  Government  to  do  justice  when 
the  circumstances  may  be  more  propitious. 

I  do  not  think  it  to  he  inopportune  in  vieiv  of  the  current 
events  to  recommend  to  you  and  the  Supreine  Government  of 
your  country  to  cause  some  forces  to  he  stationed  at  Sarapiqui 
to  tneet  on.  that  side  any  emergency  that  the  same  events  might 
occasion  there. 

I  take  advantage  of  this  opportunity  to  reiterate  to  you  the 
just  considerations  with  which  I  subscribe  myself,  your  very 
attentive  and  obedient  servant, 

EDUAEDO  CASTILLO. 

To  the  Hon.  The  Ministek  of  Fokeign  Eelations  of  the  Su- 
preme Government  of  Costa  Eica. 


244 


No.  33.' 

The  Nicaraguan  Chambers  order  one  of  the  provisions  of  the 
treaty  of  limits  of  1858  to  he  complied  with. 

Art.  XI.  Article  XVII  shall  be  stricken  out,  and  tlie  fol- 
lowing shall  be  inserted  in  its  stead  : 

"  The  present  contract  shaU  have  no  effect  until  accepted 
by  Capt.  Pirn,  and  until  the  Governments  of  Guatemala  and 
Costa  Rica  shall  have  given  their  opinion  upon  it ;  and  for 
that  purpose  the  time  for  the  exequatur  is  extended  sixty  days 
longer." 

[Law  of  May  10,  1864.  See  pamphlet  "  Contrato  de  ferro-carril  cele- 
brado  el  5  de  Marzo  entre  el  Honorable  Sr.  Ministro  de  Hacienda  Lie.  D. 
Antonio  Silva,  y  el  Sr,  Bedford,  C.  T.  Pirn,  capitan  de  la  Marina  Real 
inglesa,  y  ratificado  por  el  Congreso  de  Nicaragua  el  17  de  Marzo  de  1864. 
Managua.     Imprenta  del  Gobierno,  a  cargo  de  A.  Mejia,  1864."] 


245 


No.  34. 

Validity  and  force  of  the  treaty  of  limits. — Costa  Rica  does 
not  accede  to  station  forces  at  Sarapiqui  on  the  ground  that 
it  is  unnecessary. 

Department  of 
Foreign  Eelations  of  Costa  Eica, 

San  Jose,  May  26,  1863. 

Sir  :  In  taking  possession,  ad  interim,  of  this  department, 
my  attention  was  called  to  your  note  enclosing  a  copy  of  the 
project  of  the  contract  of  transit  submitted  to  your  Govern- 
ment by  Mr.  Felix  Belly,  and  making  some  suggestions  in 
regard  to  the  advisability  that  the  Government  of  this  Ee- 
public  should  station  some  forces  at  Sarapiqui  to  meet  there 
certain  emergencies. 

In  regard  to  the  Belly  contract,  you  will  allow  me  to  call 
the  attention  of  your  Government  to  the  timely  remarks  made 
by  our  common  Minister  at  Washington  in  regard  to  the  ex- 
piration of  the  contract  celebrated  with  the  American  com- 
pany in  his  despatch  addressed  to  your  department  under 
date  of  the  28th  of  April,  a  copy  of  which  was  sent  to  this 
Government. 

My  Government  thinks,  therefore,  that,  for  the  present, 
and  notwithstanding  the  good  antecedents  of  Mr.  Belly,  the 
most  prudent  thing  would  be  to  refrain  from  making  any 
new  contract  of  transit  and  wait  until  the  differences  between 
your  Government  and  the  North  American  Company,  in  re- 
gard to  the  validity* or  invalidity  of  the  contract,  are  set- 
tled ;  and  this  is  all  the  more  to  be  done,  as  it  appears, 
according  to  the  remarks  already  alluded  to,  that  the  proba- 
bihties  of  success  are  on  the  side  of  the  American  Company. 

I  hope  that  you  will  not  see  in  these  suggestions  any  thing 
else  than  the  desire  of  carrying  such  an  important  business 
to  success,  as  well  as  the  interest  that  my  Government  has, 


246 

in  that  your  Government  adopts  the  best  means  to  terminate 
a  matter  which,  like  this,  may  have  such  important  results. 

In  view  of  this  it  would  be  useless  to  enter  into  the  sub- 
stance of  the  Belly  project,  since  this  Government  expects 
that  yours  will  not  take  any  step  in  the  subject  until  all 
questions  with  the  Transit  American  Company  are  settled. 
Therefore,  my  Government^  reserving  for  that  occasion  to  give 
the  vote  secured  to  it  by  Article  VIII  of  the  treaty  of  April  15, 
1858,  promises  itself  that  your  Government,  before  con- 
tracting new  engagements,  will  do  all  that  it  can  to  bridge 
over  the  difficulties  which  it  now  encounters. 

In  regard  to  the  suggestions  made  by  you  on  the  advisa- 
hility  to  station  some  forces  at  Sarapiqui,  I  am  directed  to  re- 
ply that  as,  fortunately,  the  danger  which  threatened  your 
Republic  on  that  side  has  already  disappeared,  the  necessity 
of  sending  there  any  forces  has  also  ceased  to  exist. 

In  transmitting  the  above  to  you  I  have  the  honor  to  sub- 
scribe myself, 

Your  very  attentive  and  obedient  servant, , 

JULIAN  VOLIO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


247 


No.  35. 

Costa  Rica  protests  against  the  occupation  and  deterioration  of 
the  Colorado  river. 

Depaktment  of  Fokeign  Eelations 

OF   THE   KePUBLIC    OF    CoSTA   KiCA, 

San  Jose,  July  15,  1863. 

SiE :  This  Government  having  been  informed  that  the 
Transit  Company  in  Nicaragua  attempts  to  obstruct  the  Col- 
orado river  which  runs  within  the  territory  of  Costa  jRica,  the 
President  was  pleased  to  direct  the  proper  investigation  to 
be  made ;  and,  as  it  appears  from  the  report  of  the  special 
committee  appointed  for  that  purpose,  that  the  engineers  of 
the  above-named  company  sounded  and  marked  the  Colorado 
river,  and  have  already  prepared  four  useless  schooners  which 
they  intend  to  load  with  sand  and  stones  and  sink  in  the  said 
river  in  order  to  close  it,  His  Excellency  has  directed  me  to 
address  your  Government  and  ask  of  it  to  he  pleased  to  pre- 
vent said  purpose  from  being  accomplished,  since  it  is  so  ex- 
tremely i7ijurious  to  the  interests  of  this  country,  and  to  give 
notice  at  the  same  time  to  the  directors  of  the  company  afore- 
said, that  he  is  determined  to  prevent  all  usurpation  of  the  ter- 
ritory fiom  being  consummated,  and  that  the  expenses  to  be  in- 
curred in  the  repairing  of  the  damages  caused  by  them  in  the 
river  will  be  charged  to  those  loho  caused  them  to  be  incurred. 

With  distinguished  consideration,  <fec., 

JULIAN  YOLIO. 

To  His  Excellency  The   Minister   of  Foreign   Eelations 
of  the  Eepublic  of  Nicaragua. 


24:8 


No.  36. 

The  Governinent  of  Nicaragua  recognizes  that  the  Colorado 
river  and  its  mouth  are  in  Costa  Rican  territory  and  belong 
to  Costa  Rica^  and  cannot  he  closed  against  the  vnll  of  the 
latter. 

GOVEENMENT  HoUSE, 

Leon,  Julij  21,  1863. 

Mr.  Minister  :  Under  this  date  I  have  written  to  the 
general  agent  of  the  company,  and  transmitted  to  the  United 
States  Minister  residing  in  Nicaragua  the  following  despatch : 

"  The  Department  of  Foreign  Kelations  of  the  Government 
of  the  Eepublic  of  Costa  Rica  has  addressed  to  this  Depart- 
ment, under  date  of  July  15th,  the  following  despatch : 
'  This  Government  having  been  informed  that  the  Transit 
Company  in  Nicaragua  attempts  to  obstruct  the  Colorado  river ^ 
which  runs  vnthin  the  territory  of  Costa  Rica^  the  President 
was  pleased  to  direct  the  proper  investigation  to  be  made, 
and  as  it  appears  from  the  report  of  the  special  committee 
appointed  for  that  purpose  that  the  engineers  of  the  above- 
named  company  sounded  and  marked  the  Colorado  river, 
and  have  already  prepared  four  useless  schooners  which  they 
intend  to  load  with  sand  and  stones,  and  sink  in  the  said 
river  in  order  to  close  it.  His  Excellency  has  directed  me 
to  address  your  Government  and  ask  of  it  to  be  pleased  to 
prevent  said  purpose  from  being  accomplished^  since  it  is  so 
extremely  injurious  to  the  interests  of  this  country,  and  to  give 
notice  at  the  same  time  to  the  directors  of  the  company 
aforesaid  that  he  is  determined  to  prevent  all  usurpation  in 
his  territory  from  being  consummated,  and  that  the  expenses 
to  be  incurred  in  the  repairing  of  the  damages  caused  by 
them  in  the  river  will  be  charged  to  those  who  caused  them 
to  be  incurred. 

"  'With  distinguished  consideration  I  subscribe  myself, 
your  attentive  and  obedient  servant, 

*"J.  YOLIO.' 


249 

"  This  Government  had  already  received  information  that 
some  old  vessels  had  been  bought  by  the  company  for  the 
purpose  of  closing  the  mouth  of  the  Colorado  river,  and 
noticed  that  this  step  would  cause  great  injury  to  the  town 
of  San  Juan  del  Norte  on  account  of  the  violent  accumula- 
tion of  water  at  the  mouth  of  the  San  Juan  river  which 
would  be  produced  by  it. 

"  On  the  other  hand,  the  grant  of  transit  made  by  the  Gov- 
ernment to  the  company  is  only  temporary,  because,  in  the 
opinion  of  the  Government,  the  contract  had  expired  ;  and 
it  cannot  see  without  suspicion  that  the  said  company  seems 
to  be  bent  upon  making  permanent  works  which  ought  to 
have  been  accomplished  during  the  time  fixed  in  the  contract, 
and  which  now  cannot  take  place  under  the  provisional  grant 
afterwards  made. 

"  Under  these  circumstances  I  have  been  directed  to  tell  you 

that  THE  CLOSING  OF  THE  MOUTH  OF  THE  COLORADO  RIVER,  WHICH 
RUNS  IN  THE  TERRITORY  OF  THE  EePUBLIC  OF  CoSTA  KiCA,  WHICH 

RESISTS  THAT  CLOSING,  CANNOT  BE  PERMITTED,  and  that  no  other 
permanent  work  in  the  territory  of  Nicaragua  not  within  the 
permission  lately  granted  of  provisional  transit,  under  the 
trust  and  confidence  of  the  United  States  Minister,  can  either 
be  allowed. 

"  I  have  the  honor  to  communicate  it  to  you  for  your  in- 
formation, and  subscribe  myself  your  attentive  servant, 

"PEDRO  ZELED6N." 

And  I  have  the  honor  to  transmit  to  you  the  foregoing 
despatch  for  your  information,  and  in  answer  to  your  despatch 
of  the  15th  instant  above  copied,  assuring  you  that  my  Gov- 
ernment will,  on  its  part,  always  prevent  any  new  work  which 
may  be  attempted  to  be  done  upon  the  territory  of  your 
Republic. 

I  subscribe  myself,  with  all  consideration,  your  very  atten- 
tive and  obedient  servant, 

PEDRO  ZELEDON. 

To  the  Hon.  Minister  of  Foreign  Relations  of  the  Supreme 
Government  of  the  Republic  of  Costa  Rica. 


250 


No.  37. 

Nicaragua  recognizes  still  rrtore  solemnly  that  the  Colorado 
river  and  the  right  hank  of  the  San  Juan  river  are  Costa 
Rican  territory. 

GOVEENMENT  HoUSE, 

Leon,  July  28,  1863. 

SiK :  In  consequence  of  your  estimable  despatch  No.  30, 
of  the  15th  instant,  the  proper  communication  has  been  ad- 
dressed to  the  general  agent  of  the  company,  stating  that  the 
Government  of  Nicaragua  does  not  pei'mit  him  to  do  any  work 
IN  Costa  Eican  territory,  as  the  right  bank  of  the  San 
Juan  river  at  the  confluence  of  the  Colorado  is,  nor  to  do 
any  other  work  of  permanent  character  in  pursuance  of  the 
grant  made  in  favor  of  the  company  only  temporarily,  for  no 
more  than  three  months.  The  same  communication  was 
transcribed  to  the  Minister  of  the  United  States,  who  has 
under  his  care  and  trust  the  property  of  the  company.  The 
Government  of  Nicaragua  therefore,  far  from  countenancing 
said  work,  relies  upon  Costa  Rica  to  oppose  it  and  prevent  it 
from  being  consummated  in  its  territory. 

I  have  the  honor  to  say  this  to  you  in  answer  to  your  de- 
spatch above  named,  and  subscribe  myself  your  attentive 
servant, 

PEDRO  ZELEDON. 

To  The  Minister  of  Foreign  Eelations   of  the   Supreme 
Government  of  Costa  Eica. 


251 


No.  38. 

The  Minister  of  Nicaragua  in  Washington  solemnly  declares 
hefore  the  A  merican  Government  that  the  Republic  of  Costa 
Rica  borders  on  the  interior  waters  of  Nicaragua^  and  that 
its  flag  is  the  only  one  which,  in  union  with  the  Nicaraguan 
flag,  can  float  on  said  waters. 

Legation  of  Nicaragua, 

Washington,  Oct  7,  1863. 
Most  Excellent  Sir  : 

^  4f  *  -jf  *  *  -jf 

On  the  other  hand,  I  can  assure  Your  Excellency  that  the 
present  administration  of  Nicaragua  does  not  feel  disposed 
to  consent  that  any  other  flag,  except  her  own  and  that 
OF  Costa  Kica,  as  a  bordering  State,  should  float  in  the 
NAVIGATION  OF  HER  INTERIOR  WATERS,  and  that  it  considers 
that  the  use  of  the  flag  of  the  United  States  made  hy  the 
Central  ATnerican  Transit  Company,  and  even  by  the 
meanest  laborers  of  the  same,  for  the  purpose  of  evading 
the  orders  and  escaping  the  authority  of  Nicaragua,  is  an 
unauthorized  abuse,  and  that,  it  being  persuaded  that  such 
an  abuse  can  only  produce  complications,  it  will  maintain 
its  right,  and  will  demand  from  the  said  company,  or  from 
any  other  company  owing  its  existence  to  it,  that  it  should 
root  itself  in  the  country  and  become,  therefore,  national- 
ized, according  to  the  law  of  nations,  and  use  pre-eminently 
the  national  flag,  whenever  one  should  be  required  within 
its  jurisdiction,  no  other  flag  being  admitted,  except  under 
exceptional  circumstances  and  through  courtesy. 

***•?(•  ^  -x-  ^ 

LUIS  MOLINA. 

To  His  Excellency  William  H.  Seward, 

<&c.,  dsc,  dhc,    Washington,  D.  C. 
[From  ''La  Gaceta"  of  Nicaragua,  No.  49,  January  16,  1864.] 


252 


No.  39. 

The  Government  of  Nicaragua  approves  the  declaration  of 
its  Minister  at  Washington,  and  commends  him  for  his 
zeal  and  fidelity. 

Department  of  Foreign  Kelations. 

In  consequence  of  the  Executive  Decrees  of  November 
29th  ultimo  and  March  2d  instant,  in  which  the  contract  of 
interoceanic  transit  was  declared  to  be  invalid,  because  the 
company  had  failed  to  comply  with  the  indispensable  condi- 
tions under  which  it  had  been  granted,  and  in  which  the 
property  of  the  said  transit  company,  already  belonging  to 
Nicaragua  by  virtue  of  the  stipulations  of  the  same  contract, 
was  ordered  to  be  taken  possession  of, — the  company  at- 
tempted to  give  rise  to  an  international  question,  and  by 
means  of  protests  and  affidavits  of  interested  parties  it  at- 
tempted to  surprise  the  Government  of  the  United  States,  and 
falsely  charged  that  when  the  said  property  was  taken  pos- 
session of,  at  the  San  Juan  del  Norte  river  and  port,  the  flag 
of  the  United  States  hoisted  upon  each  one  of  the  company's 
establishments  had  been  unworthily  insulted. 

His  Excellency  the  Minister  of  Nicaragua  at  Washington, 
having  been  informed  of  those  steps,  and  being  zealous  of  the 
honor  of  the  Republic  and  of  the  good  understanding  between 
his  Government  and  the  Government  of  the  United  States, 
engaged  himself  at  once  in  causing  an  investigation  of  the 
facts  to  be  made  and  communicated  to  that  effect  with  His 
Excellency  the  Secretary  of  State  of  the  North  American 
Republic.  The  satisfactory  result  of  this  action  is  shown 
by  the  following  communications,  which  the  Government 
deems  it  proper  to  publish  since  they  do  due  honor  to  the 
good  faith  and  loyalty  which  govern  the  relations  of  the 
United  States  with  Nicaragua,  and  reflect  no  less  credit  on 
the  zeal  and  fidelity  of  our  Minister  at  Washington. 


253 

7 

No.  40. 

The  action  of  Don  Luis  Molina^  Minister  of  Nicaragua  in 
Washington,  is  approved  and  commended. — Executive  Or- 
der rewarding  the  important  services  of  Don  Luis  Mo- 
lina, Minister  Plenipotentiary  of  Nicaragua  in  the  United 
States,  and  Mr.  Mandeville  Carlisle  and  Don  Fernando 
Guzman. 

The  Government, 

In  consideration  of  the  extraordinary  and  important  ser- 
vices of  our  Minister  Plenipotentiary  in  Washington,  Lie. 
Don  Luis  Molina,  rendered  in  the  question  lately  raised  by 
the  Central  American  Transit  Company  in  the  United  States  ; 
and  of  the  new  contract  which  has  been  submitted  to  the 
approval  and  ratification  of  Congress ;  and  also  of  the  en- 
lightened and  valuable  assistance  rendered  by  Mr.  Mande- 
ville Carlisle,  a  lawyer,  in  the  framing  of  the  said  contract ; 
and  also  of  the  services  rendered  by  Senator  Don  Fernando 
Guzman,  in  his  trip  to  the  United  States  for  the  same  pur- 
pose, has  decided  to  reward  them  as  follows  : 

1st.  His  Excellency  Don  Luis  Molina,  Minister  Plenipo- 
tentiary of  Nicaragua  in  the  United  States,  will  be  paid  the 
sum  of  $10,000  in  American  gold. 

2d.  The  lawyer,  Mr.  Mandeville  Carlisle,  will  be  paid  $5,000 
in  the  same  money. 

3d.  Senator  Don  Fernando  Guzman  will  be  paid  $2,500  in 
the  same  money. 

The  above  said  sums  shall  be  paid  by  the  company,  as 
agreed  between  it  and  Senor  Molina,  as  soon  as  the  contract 
is  ratified  and  the  ratification  is  made  known  to  the  company. 

Given  at  the  National  Palace  of  Managua  on  the  11th 
day  of  January,  1864. 

MAETINEZ. 

Countersigned : 
Zeled(5n, 

Secretary  of  Foreign  Lactations. 

[From  the  *'  Gaceta  de  Nicaragua,"  No.  49,  January  16,  1864.] 


264 


No.  41. 

Validity  and  strength  of  the  Treaty  of  April  15,  1858. 

National  Palace, 
Managua,  January  11,  1864. 

To  The  Minister  of  Foreign  Relations  of  the  Supreme  Gov- 
ernment of  Costa  Rica. 
Sir  :  In  compliance  with  the  provision  of  the  treaty  in 
force  hetween  this  Republic  and  yours,  and  notwithstanding 
the  information  which  you  have  already  received  from  our 
Minister  in  Washington,  Lie.  Don  Luis  Molina,  that  this 
step  had  been  foreseen  and  anticipated,  I  have  the  honor  to 
transmit  to  Your  Excellency  a  copy  of  the  convention  lately 
concluded  between  the  said  Minister  under  the  proper  in- 
structions and  powers  from  this  Government,  and  the  Presi- 
dent of  the  Board  of  Directors  of  the  Central  American 
Transit  Company,  by  which  all  questions  lately  raised  by  the 
said  company  against  the  decrees  of  this  Government,  nulli- 
fying the  old  contract  and  taking  possession  of  the  steam- 
boats and  other  property  which,  under  the  same  contract, 
had  become  the  property  of  the  Eepublic,  have  been  settled 
and  set  at  rest.  This  contract  has  been  ratified  by  the  Com- 
pany, and  is  now  subject  to  the  approval  of  the  Government 
and  the  ratification  of  Congress,  to  which  the  Government 
wishes  to  submit  it,  together  with  the  vote  or  opinion  of  Costa 
Rica  and  Guatemala,  in  compliance  with  the  respective 
treaties,  as  soon  as  it  meets  either  in  ordinary  or  extraordi- 
nary session.  This  Government  cannot  on  its  own  part  re- 
frain from  expressing  that  it  has  seen  with  extreme  satisfac- 
tion that  by  means  of  this  contract  it  has  obtained  the  most 
which  it  desired  in  its  instructions,  and  that  the  loyalty, 
efficiency,  and  ability  of  the  worthy  son  of  Nicaragua,  en- 
trusted with  this  negotiation  and  with  the  representation  in 


255 

Washington  of  this  Eepnblic  and  of  the  Eepublic  of  Costa 
Rica,  have  been  demonstrated. 

I  have  the  honor  on  this  occasion  of  repeating  to  you  the 
sentiments  of  esteem  and  consideration  with  which  I  sub- 
scribe myself  your  obedient  servant, 

PEDRO  ZELEDON. 


256 

No.  42. 

Validity  and  strength  of  the  Treaty  of  Limits. 

National  Palace, 
Managua,  March  19,  1864. 

To  the  Minister  of  Foreign  Relations  of  the  Supreme  Govern- 
ment of  Costa  Rica, 

Sir  :  In  compliance  imth  the  provisions  of  the  treaty  in 
force  hetween  this  RepvMic  and  yours^  I  have  the  honor  to 
transmit  for  the  knowledge  of  your  Supreme  Government  an 
authorized  copy  of  the  contract  lately  celebrated  between  the 
Secretary  of  the  Treasury,  as  Commissioner  appointed  to  that 
effect  by  this  Government,  and  Mr.  Bedford  C.  F.  Pim,  and 
approved  by  the  Executive  of  Nicaragua,  and  ratified  by  the 
Legislative  Power  of  the  same,  as  shown  by  its  text,  which  I 
do  in  order  to  obtain  the  vote  or  (pinion  of  your  Governnient 
required  by  said  treaty. 

With  sentiments  of  high  consideration,  I  subscribe  my- 
self your  attentive  servant, 

E.  COKTES. 


257 


No.  43. 

The  Government  of  Costa  Rica  orders  an  exploration  to  be 
made  of  its  lands  hordering  on  the  San  Juan  river. 

Department  of  Foreign  Eelations  of  the 
Eepublic  of  Costa  Kica, 

San  Jose,  May  26,  1864. 

Sir  :  About  two  months  ago,  a  committee  consisting  of 
Senores  Meves  and  Luis  Serrano,  Juan  Florentino  and 
Anastasio  Quesada,  started  from  the  City  of  Alajuela,/^*/'  the 
purpose  of  exploring  in  the  neighborhood  of  the  San  Juan 
river  the  most  convenient  places  to  open  a  road  between  this 
Eepublic  and  Castillo  Viejo.  After  waiting  in  vain  for  the 
return  of  that  committee,  information  was  received  that  when 
the  said  gentlemen  reached  Castillo  Yiejo  they,  were  arrested 
by  the  authorities  of  your  Eepublic  and  taken  prisoners  to 
fort  San  Carlos. 

My  Government  hopes,  from  the  high  sense  of  justice  of 
that  of  your  country,  that  if  the  said  gentlemen  did  not  give 
any  legal  reason  to  be  committed  to  prison  the  proper  orders 
would  be  transmitted  to  the  authorities  of  the  fort  to  restore 
them  to  liberty  and  facilitate  their  return  to  their  country. 

I  avail  myself  of  this  opportunity  to  subscribe  myself  your 
attentive  servant, 

J.  VOLIO. 

To   His  Excellency  The  Minister  of  Foreign  Eelations 
of  the  Eepublic  of  Nicaragua. 
17 


258 

No.  44. 
New  expedition  to  the  hanks  of  the  San  Juan  river. 

Department  of  Foreign  Kelations 

<JF  THE  KePUBLIC  OF  CoSTA  RiCA, 

San  Jose,  July  31,  1864. 

Sir  :  Following  the  suggestion  that  you  were  pleased  to 
make  in  your  estimable  despatch  of  June  9th  last,  I  have  the 
honor  to  inform  you  of  the  approaching  departure  of  a  new 
exploring  expedition  to  the  banks  of  the  San  Juan  -river  for 
the  purpose  of  locating  the  shortest  road  between  the  interior 
of  the  Republic  and  the  waters  of  th<it  river.  The  said  Com- 
mission has  been  provided  with  the  proper  passports. 

According  to  all  information  up  to  this  time  received,  the 
opening  of  a  road  to  the  above-named  point  is  a  very  easy 
matter,  and  it  will  considerably  facilitate,  to  the  common  ben- 
efit of  both  Republics,  their  commercial  relations.  It  is, 
therefore,  to  be  expected  that  the  Supreme  Government  of 
your  country,  if  so  disposed,  will  be  pleased  to  direct  the  au- 
thorities of  Castillo  Yiejo  and  Fort  San  Carlos  not  to  op- 
pose any  obstacle  to  any  one  who,  for  the  purposes  aforesaid, 
should  approach  those  fortresses,  whenever  they  exhibit 
their  passports  from  this  Government. 

Taking  advantage  of  this  opportunity,  I  have  the  honor  to 
reiterate  to  you,  <fec., 

J.  YOLIO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
Nicaragua. 


259 


No.  45. 

Nicaragua  acknowledges  that  Costa  Rica  borders  on  the  San 

Juan  river. 

National  Palace, 
Managua,  August  23,  1864. 
To  the  Hon.  Minister  of  Foreign  Relatio7is  of  Costa  Rica. 

Sir  :  I  have  had  the  honor  to  receive  your  estimable  de- 
spatch of  the  31st  of  July  ultimo,  in  reference  to  mine  of  June 
last,  and  to  a  new  exploring  exjyedltion  sent  hy  your  Republic 
to  the  banks  of  the  San  Juan  river  for  the  purpose  of  locating 
a  convenient  road. 

This   road   may   be    opened   up  to  the  San  Juan  river 

WITHOUT  GOING  OUT  OF  THE  TERRITORY  OF  YOUR  EePUBLIC, 
ACCORDING  TO  THE  TREATY  OF  LIMITS  BETWEEN  IT  AND  NIC- 
ARAGUA ;  biit  it  may  be  also  -  constructed,  if  shortness  is 
principally  consulted,  in  such  a  way  that  it  touches  the  ter- 
ritory which  this  Republic  reserved  for  itself  for  the  proper 
defence  of  Castillo  Yiejo  and  its  free  communication  with 
San  Carlos.  In  the  latter  case  a  previous  arrangement  would 
be  necessary  between  the  two  Governments. 

It  is  for  this  reason  that  the  arrival  of  the  explorers  to 
Castillo  Viejo,  or  to  any  place  whatever  between  it  and  San 
Carlos,  cannot  be  but  accidental ;  and  in  order  that  it  may 
not  cause  alarm  in  those  garrisons  I  have  sent  a  copy  of  this 
note  to  the  respective  commanding  officers  thereof,  and  I 
hope  that  you  will  be  pleased  to  communicate  the  same  to 
the  contractor  to  avoid  all  mistakes. 

I  am,  with  high  consideration,  your  attentive  servant, 

P.  ZELEDON. 


260 


No.  46. 

Kwaragua  promises  that  the  interests  of  Costa  Rica  will  he 
respected,  and  that  its  rights  will  suffer  no  detriment. 

National  Palace, 
Managua,  June  13,  1866. 

Mr.  Minister  :  I  informed  His  Excellency  the  President  of 
this  Republic  of  your  despatch  of  May  25  ultimo,  reiterating 
the  statements  of  the  communication  addressed  by  your  De- 
partment, under  date  of  July  15,  1863,  in  relation  to  the 
work  of  the  transit  company,. and  for  the  purpose  of  pre- 
venting the  latter  from  doing  anything  which  might  obstruct 
the  Colorado  river,  or  any  of  its  branches,  this  reiteration 
being  made  because  your  Government  has  been  informed 
that  some  work  of  this  kind  is  now  intended  to  be  done  by 
the  above  said  company. 

This  Department  has  no  knowledge  that  any  work  is  being 
done  in  the  sense  above  indicated,  and  therefore,  under  this 
very  date,  it  has  asked  the  authorities  at  both  the  port  and 
river  of  San  Juan  del  Norte  for  the  proper  report.  With  the 
result  thereof  the  proper  answer  will  be  given  to  your 
despatch  of  May  25  ultimo,  above  named  ;  but  in  the  mean- 
time the  Supreme  Government  of  Costa  Rica  may  rest  as- 
sured that  the  Government  of  Nicaragua  will  respect  the 
interests  of  Costa  Rica,  and  will  see  that  its  rights  are  in  no 
vmy  injured.  This  is  the  answer  which  I  have  been  directed 
to  give  you,  and  I  have  the  honor  to  reiterate  to  you  the 
protests  of  my  great  esteem. 

ROSALIO  COETES. 

To  the  Hon.  Minister  of  Foreign  Relations  of  the  Supreme 
Government  of  the  Republic  of  Costa  Rica. 


261 


No.  47. 

Costa  Rica  protests  against  the  deviation  of  the  waters  of 
the  Colorado  river  belonging  to  that  Republic. 

Department  of  Foreign  Kelations 

OF  THE  KePUBLIC  OF  CoSTA  KiCA, 

San  Jose,  Jxme  26,  1866. 

Sir  :  The  President  of  the  Republic  having  been  informed 
that  the  Central  American  Transit  Company  attempts  to 
obstruct  the  Colorado  river  or  some  of  its  branches^  all  of 
which  run  in  the  territory  of  this  Republic,  in  order  to  in- 
crease the  volume  of  waters  of  the  San  Juan  river,  and 
tr^isting  i?i  the  promise  that  your  Government  m.ade  to  the 
Goveryiment  of  Costa  Rica  on  July  21,  1863,  in  answer  to 
the  communication  of  the  15th  of  the  same  month,  protesting 
against  that  attempt,  has  been  pleased  to  direct  me  to  ad- 
dress your  Government,  as  I  have  the  honor  to  do,  reiterating 
the  statements  of  the  said  com.municatio7i  of  July  15,  1863, 
in  order  that,  in  due  regard  to  the  interests  of  both  Repub- 
lics, your  Government  m.ay  be  pleased  to  interpose  its  authority 
to  prevent  the  said  company  from  carrying  out  its  purj^ose 
of  injuring  the  right  bank  of  the  San  Juan  river,  belonging 
to  Costa  Rica,  or  the  Colorado  river,  or  any  one  its  branches. 

Taking  advantage  of  this  opportunity,  it  is  pleasing  to  me 
to  offer  you  the  assurances  of  my  esteem,  &c. 

J.  YOLIO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


262 

No.  48. 

Despatch  stating  that  a  sanitary  cordon  of  Costa  Rica  has 
trespassed  on  the  Nicaragitan  frontier  as  established  hy  the 
treaty  of  1858. 

Office  of  the  Prefect 

OF  the  Southern  Department, 

KiVAS,  January  8,  1867. 
7b  the  Hon.  Secretary  of  State 

of  the  Government  of  Nicaragua. 
Sir  :  I  have  the  honor  to  report  that  the  Government  of 
Costa  Eica  moved,  no  doubt,  by  the  information  that  cholera 
had  broken  out  in  this  Republic,  has  ordered  a  sanitary  cor- 
don to  be  stationed  on  the  frontier.  But  in  doing  so  the 
Costa  Rican  Government  has  invaded  the  territory  of  this 
Bejyuhlic  hy  establishing  a  gariison  at  the  place  named  El 
Naranjito^  which  is  two  leagues^  or  perhaps  m,ore,  distant 
on  this  side  from  the  dividing  line  lately  agreed  upon  by 
the  two  Republics. 

This,  in  my  judgment,  is  an  attack  upon  our  property  which 
may  create  great  difficulties,  and  for  this  reason  I  report  it 
to  Your  Excellency,  in  order  that  Your  Excellency  may  take 
such  action  as  proper. 

MAXIMO  ESPINOSA. 


263 


No.  49. 

Nicaragua  asks  that  a  sanitary  cordon  be  moved  back  to  the 
frontier  established  by  the  Treaty  of  1858. 

[seal],  '  National  Palace, 

Managua,  January  12,  1867. 

Mr.  Minister  :  I  have  the  honor  to  enclose  an  authorized 
copy  of  a  communication  sent  to  this  Department  by  the  Pre- 
fect of  the  Southern  Department.  You  will  see  by  it  that  the 
officers  commanding  a  picket  belonging  to  the  sanitary  cordon 
established  by  your  Government  have  trespassed  upon  the  di- 
viding line  by  situating  their  forces  in  Nicaraguan  territory. 

My  Government  hopes  that  yours  will  be  pleased  to  issue 
the  proper  orders  for  the  purpose  that  the  above-named  forces 
vacate  the  points  which  at  present  they  occupy  in  this  country 
and  station  themselves  on  Costa  Rican  soil. 

No  doubt  is  entertained  that  such  orders  will  be  issued  with 
the  promptness  required  by  the  case,  because  it  is  not  to  be 
presumed,  in  view  of  the  sense  of  justice  of  your  Government 
and  of  the  good  relations  which  exist  between  the  two  coun- 
tries, that  there  is  any  desire  to  do  any  hostile  act  against 
Nicaragua. 

With  the  assurances  of  my  greatest  esteem  and  considera- 
tion, I  subscribe  myself  your  attentive  servant, 

KOSALIO  COETES. 

To  the  Hon.  Minister  of  Foreign  Eelations  of  the  Supreme 
Government  of  Costa  Eica. 


264 

No.  50. 

The  Governraent  of  Costa  Rica  consents  to  move  hack  its  sani- 
tary cordon  to  a  point  indisputably  located  within  the  limits 
established  by  the  treaty  of  April  15,  1858. 

Depabtment  of  Foreign  Eelations  of  Costa  Kica, 

San  Jose,  January  25,  1867. 

Sir  :  I  submitted  to  the  President  of  the  Republic  your 
attentive  official  communication  of  the  12th  instant,  enclos- 
ing an  authorized  copy  of  the  letter  addressed  to  you  on  the 
Stli  instant  by  the  Prefect  of  the  Southern  Department,  and 
stating  that  the  officer  in  command  of  the  sanitary  cordon 
of  this  Republic  trespassed  upon  the  dividing  line  in  sta- 
tioning forces  on  Nicaraguan  territory,  and  that  your  Govern- 
ment expects  from  the  sense  of  justice  of  my  Government 
and  the  good  relations  existing  between  both  countries  that 
the  proper  orders  should  be  given  to  the  above-named  forces 
to  vacate  the  aforesaid  territory.  In  consequence  thereof  I 
have  been  directed  to  give  you  the  following  answer : 

Although  the  place  where  the  Governor  of  Liberia  sta- 
tioned the  first  sanitary  cordon  is  not  shown  to  belo7ig  to  the  terri- 
tory of  Nicaragua^  because  the  dividing  line  between  the  two 
Republics  is  not  yet  actually  drawn  there,  still  it  was  sufficient 
that  your  Government  should  deem  that  point  to  be  included 
within  the  limits  of  your  Republic,  to  make  my  own  Govern- 
ment, without  entering  into  the  merits  of  the  question  and 
for  the  sake  of  harmony  between  one  and  another  people 
and  of  the  sincere  friendship  of  both  Governments,  to  cause 
the  sanitary  cordon  to  be,  as  it  has  been,  immediately  with- 
drawn and  established  only  on  such  places  as  indisputably 
belong  to  the  territory  of  Costa  Rica. 

The  wishes  of  your  Supreme  Government  are  thus  complied 
with ;  and,  in  transmitting  to  you  this  fact,  I  reiterate,  <fec., 

J.  YOLIO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of  • 
Nicaragua. 


265 


No.  51. 

Costa  Rica  shovjsher  disposition  to  enter  into  arrangements  with 
Nicaragua  to  deterinhie  hy  mutaat  agreement  what  should 
be  done  in  regard  to  communications  on  the  Atlantic  side. 

Department  of  Foreign  Relations  of  Costa  Rica, 

San  Jose,  Noveviber  25,  1868. 

Sir  :  This  Department  has  received,  together  with  your 
important  despatch  of  the  7th  instant,  an  authenticated  copy 
of  the  report  of  the  civil  engineer  of  your  Republic  who 
made  the  survey  of  the  San  Jaan  and  the  Colorado  rivers,  and 
in  due  conformity  with  the  wishes  of  your  Government,  I 
now  transmit  to  you  a  true  copy  of  the  report  upon  the  same 
subject  which  has  been  made  by  the  engineers  of  this  Re- 
public. 

You  will  see  that  both  reports  entirely  agree  upon  the 
principal  fact,  and  consider  that  San  Juan  is  the  place  where 
a  good  port  can  be  made  with  less  cost  and  more  advantages. 

My  Government  will  pay  the  greatest  attention  to  such  an 
important  matter,  and  will  readily  enter  into  any  arrange- 
ment which  may  be  proposed  to  it  beneficial  to  both  Re- 
publics. 

I  reiterate  to  you  the  assurances  of  true  esteem  with  which 
I  am,  &c., 

A.  ESQUIYEL. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
Nicaragua. 


266 

No.  52. 

Contract  Ayon-Chevalier . — Costa  Rica  is  an  essential  party 
to  the  interoceanic  canal. —  The  contract  will  he  void  if  Costa 
Rica  does  not  accejH  it. — Costa  Rica  will  he  invited  to  make 
in  favor  of  the  grantee  such  concessions  in  the  Costa  Rican 
territory  as  Nicaragua  makes  in  her  own. 

The  President  of  the  Republic  to  its  inhabitants^  greeting : 
Know  ye,  that  Congress  has  decreed  as  follows  : 
The  Senate  and  Chamber  of  Deputies  of  the  Kepublic  of 

Nicaragua 

Decree. 

Article  only.  The  contract  of  the  Maritime  Interoceanic 
Canal,  celebrated  in  Paris  on  the  6th  of  October,  1868,  by 
the  Minister  of  Foreign  Relations,  Lie.  Don  Tomds  Ayon,  and 
Monsieur  Michel  Chevalier,  a  French  subject,  consisting  of 
59  articles,  and  an  additional  one,  whose  tenor  is  as  follows, 
is  hereby  ratified  in  all  its  parts. 

*  -x-  *  *  *  *  * 

LIII. 

The  Republic  of  Nicaragua  binds  herself  to  make  every  pos- 
sible effort  to  obtain  as  early  as  practicable  the  adherence  of 
the  Republic  of  Costa  Rica  to  the  present  convention,  in  such 
a  way  that  Costa  Rica  guarantees  in  favor  of  the  grantee  and 
in  her  own  territory^  and  in  all  that  belongs  to  her^  the  ad- 
vantages stipulated  by  Articles  YI,  XIV,  XV,  XVI,  XVII, 
XIX,  and  XX ;  the  latter  in  combination  with  the  XXI,  XXIV, 
and  XXV ;  the  latter  in  combination  with  the  XXVI,  XXVII, 
XXVIII,  and  XXIX ;  the  latter  in  combination  with  the 
XXX,  XXXI,  XXXIII,  XXXIV,  XXXV,  XXXVI,  XXXVII, 
XXXVIII,  and  XXXIX ;  the  latter  in  combination  with  the 
XL,  XLI,  XLII,  XLIII,  XLIV,  XLV,  XLVI,  XLIX,  L,  and 
LII,  and  also  LVII,  LVIII,  and  LIX  foUowing. 


267 
LIV. 

The  Republic  of  Costa  Rica  will  be  invited  to  treat  the 
company  in  the  same  way  as  the  Republic  of  Nicaragua  does 
by  the  present  Convention. 

LV. 

The  Republic  of  Nicaragua  reserves  for  herself  to  enter  into 
arrangements  with  Costa  Rica  for  the  purpose  of  stipulating 
the  advantages  which  Costa  Rica  will  derive  from  adhering 
to  the  present  Convention. 

LVI. 

If  the  Republic  of  Costa  Mica  should  refuse  her  adherence, 
the  present  Convention  shall  be  ipso  facto  annulled. 

•5f  *  *  -x-  -x-  -x-  ^ 

MICHEL  CHEVALIER, 
TOMAS  AYON. 

Given  at  the  Hall  of  Sessions  of  the*  Senate,  Managua, 
March  2,  1869. — P.  Joaquin  Chamorro,  President ;  Vicente 
Guzman,  Secretary  ;  Pio  Castellon,  Secretary. 

To  the  Executive  Power.  Hall  of  Sessions  of  the  Chamber 
of  Deputies,  Managua,  March  15,  1869. — S.  Morales,  Presi- 
dent ;  P.  Chamorro,  Secretary ;  Miguel  Robledo,  Secretary. 

Therefore,  let  it  be  executed. 
Government  House, 

Managua,  March  15,  1869. 

FERNANDO  GUZMAN. 

A.  H.  RivAS, 

Secretary  of  the  Interior. 


268 


No.  53. 

Editorial  of  the  Nicaraguan  "  Gaceta  "  on  the  Ayon-Cheva- 
lier  canal  contract. —  The  San  Juan  river  explicitly  de- 
clared to  he  (1869)  in  great  jpart  the  frontier  of  Costa  Rica. 
— The  adherence  of  Costa  Rica  to  the  contract  recognized  to 
he  indispensahle. —  Costa  Rica  is  asked  to  grant  in  her 
territory  what  Nicaragua  has  granted  in  hers. — All  of 
this  presupposes  the  acknowledged  validity  of  the  treaty 
of  limits. 

''  Gaceta^' 

The  Canal  Contbact  and  the  Eepublic  of  Cost  Kica. 

The  contract  for  the  canalization  of  the  Nicaraguan  isthmus 
is  already  an  accomplished  fact.     *     *     * 

It  is  indubitable,  therefore,  that  our  canal  contract  has  been 
made  under  the  most  favorable  auspices. 

The  only  thing  that  now  remains  to  he  done  is  that  'the  Re- 
pvhlic  of  Costa  Rica  co-operates  in  its  accomplishment. 

By  Article  XLIII  of  the  canal  contract  the  Republic  of 
Nicaragua  hinds  herself  to  m,ake  every  possihle  effort  to  ohtain 
as  early  as  practicahle  the  adherence  of  the  Repuhlic  of  Costa 
Rica  to  the  Convention^  in  order  that  it  may  guarantee  in  favor 
of  the  grantee,  within  its  own  territory  and  in  all  that  cor- 
responds to  it,  the  advantages  that  Nicaragua  has  granted. 

And,  in  truth,  it  is  so  demanded  by  the  topographic  situa- 
tion of  the  San  Juan  river  and  of  the  Lake  of  Nicaragua,  which 

IN  A  GREAT  PART  SERVE  AS  A  DIVIDING  LINE  BETWEEN  THE  TERRI- 
TORY OF  THE  TWO  Republics. 

Would  our  neighbor  be  willing  not  to  oppose  any  difficul- 
ties to  the  realization  of  a  project  which  has  occupied  us  for 
so  many  years?  Would  it  be  willing  to  concur  in  this 
colossal  work,  which  is  of  paramount  necessity,  and  share  be- 
sides the  advantages  which  the  same  offers  to  it  ? 


269 

We  do  not  doubt  that  the  two  Kepublics,  whose  citizens 
have  often  shed  their  blood  in  defence  of  the  Central  Ameri- 
can independence  on  the  fields  of  Rivas  in  1856,  will  unite 
themselves  to-day  and  co-operate  in  the  opening  of  the  canal, 
which  offers  such  a  vast  horizon  of  prosperity  for  the  two 
people  whose  interests  are  completely  identical  in  this  case. 

If  Costa  Rica  has  to  make  concessions  it  has  also  to  en- 
joy IN  ITS  OWN  TERRITORY  the  same  advantages  as  the  vessels 
and  commerce  of  Nicaragua,  as  is  provided  by  the  additional 
article  of  the  Convention. 

We  trust  that  the  sympathy  and  good  sense  of  our  neigh- 
bor, looking  at  things  from  the  true  stand-point,  will  adhere 
to  the  above  said  Convention,  and  we  trust  besides  that  the 
ability  and  wisdom  of  Don  Mariano  Montealegre,  Envoy  Ex- 
traordinary and  Minister  Plenipotentiary  of  Nicaragua,  will 
secure  the  success  of  the  mission  entrusted  to  him  by 
obtaining  the  adherence  of  the  Costa  Rican  Government  to 
the  Articles  of  the  Canal  Convention  which  concern  it. 

Otherwise  Article  XL VI  of  the  Convention  reads  clearly 
and  inexorably  :  "  If  the  Republic  of  Costa  Rica  should 

REFUSE    her   adherence   THE   PRESENT    CONVENTION    SHALL   BE, 
IPSO   FACTO,    ANNULLED." 

Would  this  be  the  end  of  so  many  discussions,  so  much 
labor,  so  many  expectations  and  hopes  ?  That  is  not  possi- 
ble. 

[From  "La  Gaceta  de  Nicaragua,"  No.  17,  April  24,  1869.] 


270 


No.  54. 

The  Government  of  Nicaragua  asks  the  Government  of  Costa 
Rica  to  request  the  National  Constituent  Convention  to 
modify  certain  articles  of  a  treaty  hetween  the  two  Repub- 
lics for  the  digging  of  an  interoceanic  canal. 

San  Jose,  September  2,  1870. 

Sir  :  Sen  or  Don  Alejandro  Cousin  delivered  to  me  your 
despatch  of  the  20th  of  August,  asking  this  Government  to 
request  the  National  Constituent  Convention  to  modify  Arti- 
cle XXXYI  of  the  Convention  between  Costa  Rica  and  Nic- 
aragua for  the  opening  of  an  interoceanic  canal,  so  as  not  to 
deprive  the  company  of  the  right  of  appointing  arbitrators 
for  the  settlement  of  the  differences  which  may  arise  on  this 
subject. 

The  National  Convention  organized  itself  on  the  8th  of 
August,  and  adjourned  on  the  25th  of  the  same  month. 

It  will  reconvene  as  soon  as  the  committee  in  charge  of 
framing  a  projeqt  of  constitution  terminates  its  labors. 

I  can  assure  you  that  as  soon  as  the  Legislative  Power  re- 
convenes this  Government  will  immediately  make  the  request 
referred  to  by  you. 

I  am,  your  very  attentive  servant, 

MONTUFAR. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


271 


No.  55. 

Project  of  a  road  from  San  Josede  Costa  Rica  to  Sa?i  Carlos 
for  the  export  of  coffee  through  San  Juan  del  Norte. — 
Costa  Rica  earnestly  invited  to  co-operate  in  the  restoration 
of  the  port  of  San  Juan  by  uniting  the  waters  of  the  Col- 
orado river  with  those  of  the  San  Juan  river. 

The  "  Gaceta." 

In  number  41  of  the  "  Debate,"  issued  on  the  28th  of  last 
month,  an  article  full  of  important  statements  began  to  be 
published,  showing  the  advisability  that  some  means  of  com- 
munication towards  the  Atlantic  should  be  opened  through 
the  route  northwest  of  San  Carlos. 

The  writer,  resting  on  good  calculations  and  on  conclusive 
proofs,  demonstrates  that  a  road  in  that  direction  would  offer 
Costa  Kica  considerable  advantages,  and  facilitate  the  trans- 
portation of  coffee  from  the  places  where  it  is  raised  to  the 
port  of  embarkation. 

We  have  noticed  before  this  time  the  efforts  made  by  the 
Government  of  that  Republic  to  open  a  road  to  the  northeast 
through  the  difficult  and  costly  route  of  Limon.  The  esti- 
mates made  for  that  enterprise  contain,  as  was  natural,  heavy 
items,  capable  to  be  increased  indefinitely,  for  the  frequent 
and  perhaps  unceasing  repairs  which  the  road  required,  be- 
cause it  was  to  be  built  upon  muddy  ground,  exceedingly 
hilly,  and  totally  unprovided  with  the  material  necessary  to 
do  substantial  work. 

The  Government  of  Costa  Rica,  having  fixed  the  whole  of 
its  attention  to  finding  the  way  of  conquering  the  difficulties 
encountered  by  that  enterprise,  had  not  been  able  to  notice 
that  the  San  Carlos  route  was  more  accessible,  more  conve- 
nient to  the  commerce  and  agriculture  of  the  country,  more 
promising  of  good  results  for  the  section  crossed  by  it,  and 


272 

more  profitable  to  all  the  localities  where  coffee  is  cultivated. 
*     *     * 

Coming  back  from  our  digression  to  the  project  of  a 
northern  road  initiated  by  "  El  Debate,"  we  can  assure, 
upon  inspection  of  the  facts  furnished  by  different  surveys 
made  at  different  times,  both  on  the  land  as  well  as  on  the 
water-side,  that  the  San  Carlos  route  will  be  the  easiest,  the 
less  costly,  and  the  nearest  to  the  principal  points  of  the  Re- 
public. 

From  San  Jose,  w^hich  we  consider  as  the  central  point,  to 
Penablanca,  where  the  San  Carlos  river  is  reached  and 
where  a  port  can  be  established  under  favorable  conditions 
of  salubrity  and  sufficient  area  for  a  town,  there,  are  only 
eighteen  leagues  ;  from  there  to  the  confluence  of  the  San 
Juan  river  there  are  no  more  than  twenty  leagues,  counting 
in  this  measure  the  windings  of  the  stream  ;  and  from  there 
to  the  port  of  San  Juan  del  Norte  there  are  eighteen  more 
leagues ;  so  that  between  this  port  and  San  Jos^  there  is 
a  total  distance  of  fifty-eight  leagues.  This  is  much  less 
than  the  distance  between  the  same  port  and  the  Nicaraguan 
towns  on  the  lake  shore  ;  since  from  San  Juan  del  Norte  to 
Rivas  there  are  sixty-three,  and  to  Granada  sixty-seven, 
leagues.  To  the  capital  there  are  seventy-eight ;  that  is  to 
say,  twenty  leagues  more  than  the  distance  to  the  capital  of 
Costa  Rica.  It  is,  therefore^  plain  that  Costa  Rica  has  more 
interest  than  Nicaragua  and  is  more  henejited  than  she  hy  the 
hnyroveirients  of  the  San  Juan  mver  and  of  the  port  of  the 
same  naitne. 

The  San  Carlos  river  does  not  offer  any  obstacle  of  any 
kind,  but,  on  the  contrary,  presents  great  facilities  to  navi- 
gation after  Penablanca  is  reached ;  because,  as  it  has  no 
other  tributaries  than  the  Arsenal  river,  the  Rio  Blanco 
river,  and  a  few  streams  of  small  importance,  carries  suffi- 
cient water  of  its  own  to  render  the  danger  of  scarcity  or 
dryness  in  summer  rather  remote.  The  bottom  of  the  river 
is  generally  sandy,  at  least  in  the  navigable  part,  and  it  has 


273 

no  rapids  nor  rocks  obstructing  the  way ;  and,  if  it  is  true 
that  there  are  in  it  some  irregular  currents,  still  this  does  not 
constitute  any  danger  nor  difficulty  for  steamboats  properly 
built  for  that  purpose.  The  banks  on  both  sides  are  high, 
showing  an  average  altitude  of  from  ten  to  twenty  feet — suf- 
ficient to  prevent  overflows.  The  adjoining  lands  are  en- 
dowed with  a  wonderful  fertility  for  the  cultivation  of  sugar- 
cane, indigo,  cocoa,  and  all  the  fruits  of  our  climate. 

The  improvements  in  the  port  of  San  Juan  del  Norte  and 
in  the  lower  part  of  the  river^  sufficient  to  overcome  all  ob- 
stacles^ absolutely  dejjend  upon  the  restoration  of  the  branch 
named  Colorado  river.  The  incorporation  of  one  with  the 
other,  wholly  or  in  part,  will  not  cost  much.  Some  esti- 
mates have  been  made  of  the  cost  which  such  a  work  would 
require,  and  the  amount  reached  scarcely  exceeds  $60,000  or 
$80,000.  The  conveniences  of  the  port  are  proverbial,  even 
now,  and  certainly  will  increase  with  the  increase  of  the  water 
and  the  restoration  of  the  port  to  the  condition  in  which  it 
was  a  few  years  ago.     ^     *     ^ 

It  would^  therefore,  he  desirable  that  the  two  Governments, 
listening  to  the  voice  of  common  interest,  should  enter  into  the 
pro2)er  arrangements  to  improve,  at  the  cost  of  both  Republics, 
the  port  of  San  Juan  del  Norte  and  the  lower  part  of  the  river. 
A  great  writer  of  the  last  century  said  that  the  utility  of  one 
nation  depended  precisely  upon  the  ruin  or  retrograde  con- 
dition of  its  neighbor ;  but  he  was  execrated  by  his  contem- 
poraries for  being  the  propagator  of  pernicious  maxims.  Will 
it  be  possible  for  any  one  in  this  century  to  think  that  it  is 
right  to  lessen  the  advantages  of  a  neighbor,  even  to  the  det- 
riment of  his  own  interest  ?  Let  us  hope  that  there  is  no  such 
person,  and  that  the  Governments,  laying  aside  all  narrow- 
minded  sentiments,  will  combine  to  promote  the  prosperity 
of  both  nations. 

[From  the  "Gaceta  de  Nicaragua,"  No.  38,  September  17,  1870.] 
18 


274 


No.  56. 


Remarks  made  hy  the  Governnnent  of  Costa  Rica  to  the 
Government  of  Nicaragua  tohen  the  latter  submitted  to 
the  Nicaraguan  Congress  its  so-called  doubts  in  regard  to 
the  validity  of  the  treaty  of  limits  of  1858. 

[seal].  San  Jose,  February  1st,  1870. 

Sir  :  I  have  re.ad  with  deep  sorrow  that  part  of  the  mes- 
sage addressed  by  Your  Excellency  to  the  Nicaraguan  Con- 
gress, wherein  the  treaty  of  limits  between  Costa  Rica  and 
Nicaragua  of  April  15, 1858,  is  discussed. 

That  passage  of  Your  Excellency's  message  reads  literally 
as  follows : 

"  Article  II  of  the  Constitution  of  November  12,  1838, 
which  was  the  one  in  force  at  the  time  in  which  the  treaty 
of  limits  was  adjusted,  declared  that  the  territory  of  the 
State  of  Nicaragua  was  exactly  the  same  as  the  territory 
which  the  Province  of  Nicaragua  had  been.  This  Province, 
before  the  independence,  embraced  the  whole  territory  of 
Guanacaste. 

"Article  194  provided  that,  for  the  amendment  of  or  addi- 
tion to  any  article  of  the  Constitution,  it  should  be  required 
among  other  formalities  that  the  said  amendment  or  addition 
should  be  approved  by  the  two-third  vote  of  the  Senators 
and  Members  present,  and  that,  after  securing  this  vote, 
neither  the  amendment  nor  the  addition  should  be  considered 
as  forming  a  part  of  the  Constitution,  as  all  laws  on  limits 
are,  until  sanctioned  by  the  next  Legislature." 

"  The  same  formalities  are  established  for  similar  cases  by 
Article  103  of  the  present  Constitution." 

"The  treaty  of  limits,  in  which  Nicaragua,  abrogating 
Article  II  of  her  Constitution,  generously'  ceded  to  Costa 
Eica  a  large  portion  of  territory,  which  she  has  possessed 
quietly,  both  before  and  after  the  independence,  required  for 


275 

its  validity  to  have  been  sanctioned  by  the  next  Legislature. 
It  was  approved  by  the  Assembly  of  1858 ;  but  that  was  not 
enough.  It  ought  to  have  been  approved,  also,  by  the  Con- 
gress of  1859,  because  the  two  Legislatures  were  considered 
by  the  Constitution  as  if  they  were  two  co-ordinate  legislative 
bodies,  the  approval  by  the  first  being  only  of  initiative 
character  and  lacking  legal  force  without  the  approval  of 
the  second,  exactly  in  the  same  way  as  the  action  of  one 
Chamber  in  the  enactment  of  a  law  means  nothing  if  the 
other  Chamber  does  not  act  accordingly." 

"The  said  formality  having  been  omitted,  the  treaty  of 
limits  lacks  legal  force,  and  therefore  Costa  Kica  has  no  right 
to  demand  its  execution,  because,  according  to  the  principles 
of  the  law  of  nations,  treaties  are  void  and  inoperative  through 
the  omission  of  any  requisite  which,  according  to  the  Con- 
stitution of  the  State,  was  necessary  for  its  consummation." 

"  The  Government  of  Costa  Eica  has  acknowledged  that 
this  is  the  condition  in  which  the  above  said  treaty  finds  it- 
self, because  in  Article  VI  of  a  convention  made  on  the  12th 
of  July,  1869,  between  the  Plenipotentiaries  Don  Mariano 
Montealegre  and  Don  A.  Jimenez,  about  the  cession  of  the 
waters  of  the  Colorado  river  for  the  purpose  that  they  should 
be  thrown  into  the  San  Juan,  a  convention  of  which,  in  due 
time,  I  gave  you  the  proper  information,  it  asked  Nicaragua 
to  ratify  the  treaty  of  limits  with  Costa  Rica,  and  to  agree  to 
submit  to  the  arbitration  of  the  Government  of  the  United 
States  of  North  America  all  questions  arising  out,  either  of 
the  said  treaty,  or  of  the  execution  of  the  convention  just 
spoken  of." 

"  Costa  Rica,  in  asking  Nicaragua  to  ratify  the  treaty  of 
limits  in  which  the  latter  State  ceded  to  the  former  a  large 
extent  of  its  territory  as  preliminary  for  allowing  the  waters 
of  the  Colorado  river  to  be  thrown  into  the  San  Juan,  looked 
as  if  pretending  that  Nicaragua  first  should  give  it  the  whole 
thing,  and  subsequently  take  back  a  portion  of  it.  It  is 
useless  to  repeat  here  the  obvious  reasons  which  you  had  in 
view  for  rejecting  the  convention." 


276 

"  In  order  to  avoid  perplexities  in  tlie  course  of  this  busi- 
ness, the  Executive  requests  your  Honorable  Body  to  define 
well  the  rights  of  the  Eepublic  in  the  matter  of  limits  with 
Costa  Eica  before  undertaking  works  or  devising  plans  for 
the  improvement  of  its  ways  of  communication  on  the  north- 
ern side." 

This  grave  subject  being  now  under  discussion  in  the 
Chambers  of  your  Republic,  I  think  it  my  duty  to  present 
to  Your  Excellency  some  remarks,  and  request  that,  if  deemed 
proper,  they  be  transmitted  to  the  Congress  of  Nicaragua 
for  their  consideration. 

The  Constitution  of  your  Republic,  promulgated  on  the 
12th  of  November,  1838,  as  Your  Excellency  yourself  recog- 
nizes, did  not  say  anywhere  that  the  territory  of  Guanacaste 
was  part  of  Nicaragua.  It  confined  itself  to  indicate  that 
the  territory  of  the  State  was  the  same  as  belonged  to  it 
when  a  Province. 

In  reference  to  this  I  must  state  that  Guanacaste,  in  the 
time  of  the  Spanish  Government,  always  was  under  the  im- 
mediate jurisdiction  and  control  of  Cartago  ;  and  that  the 
Spanish  Cortes,  when  they  promulgated  the  Constitution  of 
1812,  decided  that  Guanacaste  should  be  incorporated  in 
Costa  Rica  for  the  purposes  of  electing  deputies  both  for 
the  Cortes  and  for  the  provincial  deputation  or  assembly. 

I  must  say  further,  that  according  to  the  charter  of  the 
Colony  of  Costa  Rica,  the  King  of  Spain  appointed  Don 
Diego  Artieda  y  Chirinos  to  be  the  first  Governor  and  Cap- 
tain-General of  this  Province,  marking  as  Umit  for  the  same 
the  San  Juan  river  on  the  Atlantic. 

But  there  are  other  conclusive  reasons  founded  upon  doc- 
uments of  subsequent  date  in  support  of  the  treaty  of  limits. 

It  was  approved  by  the  Government  of  Costa  Rica  and 
Nicaragua. 

It  was  ratified  by  the  Congresses  of  Costa  Rica  and  Nic- 
aragua. 

The  ratifications  of  the  treaty  were  duly  exchanged,  and 


277 

the  treaty  was  promulgated  in  both  Eepublics  as  the  law  of 
the  land  in  regard  to  limits. 

Thirteen  years  have  elapsed  since  that  publication,  and  all 
the  Legislatures  which  have  met  during  that  period  have 
looked  at  that  treaty  as  the  basis  of  the  relations  between 
both  countries. 

The  Legislature  of  Nicaragua  approved  the  treaty  of  peace 
and  amity  concluded  on  the  30th  of  July,  1868,  taking 
for  granted  that  the  limits  between  both  Republics  were 
settled. 

The  present  Constitution  of  Nicaragua,  subsequent  in  date 
to  the  treaty,  says,  in  its  Article  I,  that  the  laws  on  limits 
make  a  part  of  the  Constitution. 

The  treaty  herein  referred  to  is  aNicaraguan  law  on  limits, 
and  a  law  of  the  highest  importance.  Therefore  it  is  an  in- 
tegral part  of  the  Constitution  of  Nicaragua,  according  to  its 
own  literal  language. 

Under  these  circumstances,  the  august  Chambers  of  your 
Republic  would  need,  before  declaring  the  treaty  of  limits 
to  be  invalid,  to  be  invested  with  all  the  power  which  Your 
Excellency  says  to  be  indispensable  to  amend  the  Constitution 
of  your  country,  in  addition  to  all  other  circumstances  pre- 
scribed by  international  law  to  invalidate  a  treaty  signed,  ap- 
proved, ratified,  exchanged,  promulgated,  and  executed  during 
13  years. 

Your  Excellency  refers  to  a  project  of  Convention  cele- 
brated on  the  21st  of  July,  1869,  between  the  Plenipoten- 
tiaries Don  Agapito  Jimenez  and  Don  Mariano  Montealegre. 

Article  VI  of  the  said  project  alluded  to  by  Your  Excel- 
lency says  :  "  The  Government  of  Nicaragua  ratifies  by  this 
convention  the  treaties  which  it  has  celebrated  in  regard  to 
limits  with  the  Government  of  Costa  Rica." 

I  do  not  understand  what  was  the  reason  why  the  Costa 
Rican  Plenipotentiary  acceded  to  subscribe  to  such  an  arti- 
cle, included  in  a  project  which  was  relative  to  a  matter  en- 
tirely independent  of   all  question  of  limits ;  but  I  under- 


2T8 

stand  very  well  that  the  said  article  does  not  prove  at  all 
that  the  treaty  of  limits  is  not  valid. 

Senor  Montealegre,  Plenipotentiary  of  Nicaragua,  came  to 
suggest  that  Costa  Rica  should  allow  the  waters  of  the  Colo- 
rado river  to  be  carried  into  the  San  Juan. 

He  recognized  the  validity  of  the  treaty  of  limits,  and 
requested  that  the  waters  of  the  Colorado  river  be  granted  to 
his  country,  and  the  request  was  granted  by  the  Costa  Bican 
Plenipotentiary,  who  assented,  furthermore,  to  the  enactment 
of  Article  YI  above  copied. 

But  the  said  project  of  convention,  including  its  Article  VI, 
was  not  ratified  by  the  Congress  of  this  Republic  ;  and,  there- 
fore, it  has  no  more  force  and  strength  than  if  it  were  simply 
blank  paper. 

To  have  some  right  to  argue  against  Costa  Rica  on  the 
ground  of  the  said  convention,  it  would  be  necessary  for  the 
convention  to  have  become  a  law,  which  never  happened. 

Now,  by  virtue  of  the  discretionary  faculties  vested  in  the 
President,  His  Excellency  has  the  power  to  ratify  public 
treaties ;  but  His  Excellency  has  not  only  refused  to  ratify 
the  convention  referred  to,  but  has  been  pleased  besides  to 
decree  that  it  is  invalid  and  void. 

Be  pleased  to  accept  the  consideration  with  which  I  have 
the  honor  to  assure  Your  Excellency  that  I  am  your  most 
attentive  servant, 

MONTUFAR. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
Nicaragua. 


279 


No.  57. 


Remarks  of  the  Government  of  Costa  Rica  in  refutation  of 
the  douhts  entertained  hy  the  Government  of  Nicaragua  on 
the  validity  of  the  treaty  of  limits, 

[SEAL].  San  Jos^,  July  22,  1872. 

Sir  :  The  estimable  despatch  of  Your  Excellency,  addressed 
to  me  on  June  30,  is  now  in  my  possession. 

Your  Excellency  is  pleased  to  set  forth  in  it  that  it  is  not 
the  intention  of  your  Government  to  move  for  an  immediate 
decision  in  the  matter  of  limits,  but  to  explain  what  the  Gov- 
ernment of  Nicaragua  has  considered  to  be  an  undue  and 
wrongful  act  of  an  officer  of  this  Kepublic.     *     *     -^ 

Your  Excellency  goes  on  repeating  what  has  been  said  in 
support  of  the  opinion  that  the  treaty  of  limits  is  illegal ;  in- 
sists upon  declaring  that  what  is  called  "  Desaguadero  "  in 
the  Royal  Cedula  of  Aranjuez  is  not  the  San  Juan  river  ; 
affirms  that  several  Cedulas  and  geographers,  and  tradition, 
show  that  they  are  two  different  things  ;  says  that  the  grant 
made  by  the  King  of  Spain  was  on  condition  of  conquering 
the  territory  spoken  of  in  the  Royal  Cedula,  and  that  no  one 
will  dare  to  maintain  that  the  conquest  was  ever  made,  and 
ends  by  asking  a  frank  explanation  in  regard  to  the  action  of 
the  chief  of  the  customs  service. 

Your  Excellency  will  allow  me  to  say  that  in  your  despatch 
of  May  22  you  did  not  confine  the  discussion  to  the  matter  of 
customs  service  alone,  but  extended  your  remarks  to  some- 
thing else.  Your  Excellency  said  that  the  statu  quo  ought  to 
be  preserved  until  the  treaty  of  April  15,  1858,  is  declared 
to  be  valid  or  invalid  ;  and  further  said  that  this  statu  quo 
must  be  understood  as  follows  :  Nicaragua  exercising  the  free 
navigation  of  the  Colorado  river  and  using  all  the  places 
yielded  to  Nicaragua  by  the  treaty  of  limits,  so  that  the  statu 
quo,  according   to  Your   Excellency,  is  and  must   be  that 


280 

Nicaragua  possesses  the  whole  thing  as  absolute  lord  and 
master. 

Your  Excellency  expressed  in  the  same  despatch  that, 
after  the  validity  of  the  treaty  is  admitted,  it  will  be  neces- 
sary to  proceed  to  make  the  survey,  and  added  that  Nicara- 
gua had  granted  Costa  Rica  a  vast  territory  adjoining  the 
right  bank  of  the  San  Juan  river. 

In  the  presence  of  these  statements  it  was  necessary  for 
my  Government  to  say  all  that  is  contained  in  the  note  of 
June  10th. 

Even  in  this  despatch  I  cannot  refer  exclusively  to  the 
customs  service  question,  because  Your  Excellency  does  not 
do  so,  but  insists  on  discussing  the  question  of  limits  and 
the  validity  of  the  treaty  of  April  15,  1858. 

In  this  respect  Your  Excellency  will  allow  me  to  say  that 
historian  Juarroz  describes  the  limits  of  the  Nicoya  district 
as  follows : 

"  It  is  bounded  on  the  west  by  the  '  corregimiento,'  or 
'Alcaldia  Mayor  '  (territory  under  the  jurisdiction  of  a  mayor 
or  local  governor)  of  Sutiava ;  on  the  south  by  the  Pacific 
Ocean  ;  on  the  northeast  by  the  Lake  of  Nicaragua  ;  and  on 
the  east  the  boundary  runs  along  the  limits  of  Costa  Rica." 

The  same  thing  says  Alcedo  in  his  Dictionary  published 
in  1788. 

The  Most  Illustrious  Sen  or  Don  Francisco  de  Paula  Garcia 
Pelez  states  in  his  "  Memoirs  "  that  the  kingdom  contained  five 
Governments,  namely,  Guatemala,  Nicaragua,  Costa  Rica, 
Honduras,  and  Soconuzco  ;  and  nine  "Alcaldias  Mayores," 
namely,  San  Salvador,  Chiapas,  Tegucigalpa,  Sonsonate,  Ye- 
rapaz,  Suchitepiquez,  Nicoya,  Amatique,  and  the  mines  of 
Zaragoza.  * 

In  the  well-known  "  Report "  on  the  Kingdom  of  Guate- 
mala, made  by  Engineer  Don  Luis  Diez  de  Navarro,  in  1754, 
the  following  words  are  found  :  ''  On  the  19th  of  January, 
1744,  I  reached  the  mountain  of  Nicaragua,  which  is  a  very 
rugged    one,   where   the    province    of    that  name    ends,    as 


281 

I  have  explained  in  my  first  trip,  and  I  entered  the  jurisdic- 
tion of  Nicoya,  which,  although  an  'Alcaldia  Mayor,'  separate 
from  the  Government  of  Costa  Rica,  is  reputed  to  belong  to 
the  latter  province. 

The  same  author  further  says  as  follows  :  "  The  capital  of 
said  province  (Costa  Rica)  is  the  city  of  Cartago,  and  its 
boundaries  and  jurisdiction  are  as  follows  :  On  the  Northern 
Sea  from  the  mouth  of  the  San  Juan  river  to  the  '  Escudo ' 
of  Veragua  in  the  Kingdom  of  Tierra  Firm  a." 

The  La  Flor  river  was  the  dividing  line  between  Sutiava 
and  Nicoya,  as  shown  by  the  land  titles  and  by  the  practice 
observed  from  time  immemorial  in  the  administration  of  the 
local  government  of  both  districts. 

Three  years  after  the  independence  Nicaragua  had  to  suf- 
fer the  scourge  of  civil  war,  because  of  the  disagreement 
which  has  afflicted  her  so  much  between  Leon  and  Granada, 
Managua  and  Masaya. 

Costa  Rica,  on  the  contrary,  constituted  itself  peacefully 
and  with  the  greatest  tranquility. 

The  Nicoya  district  did  not  want  to  follow  the  fate  of  Nic- 
aragua, and  be  agitated  by  discord,  but  decided  to  belong  to 
Costa  Rica  ;  and  Costa  Rica  accepted  this  decision  in  1825, 
with  the  consent  and  approval  of  the  Federal  Congress. 

When  the  Central  American  Union  was  dissolved  each 
state  retained  the  limits  which  it  had  at  that  moment,  and 
this  is  the  uti  possidetis  on  which  their  rights  rest  at  present. 

In  consequence  of  this,  Nicoya  formed  an  integral  part 
of  Costa  Rica  until  the  year  1858,  in  which  the  treaty  of 
limits  was  signed. 

By  this  treaty  Costa  Rica  receded  from  the  La  Flor  river 
and  withdrew  as  far  as  the  Salinas  Bay. 

The  line  which  the  treaty  guarantees  for  Costa  Rica  is  one 
which  rests  upon  the  firm  ground  of  possession  for  many 
years. 

Furthermore,  in  the  apportionment  of  the  foreign  debt,  the 
share  of  Costa  Rica  included  the  portion  which  corresponded 
to  the  territory  now  spoken  of. 


282 

Costa  Rica  also  recognized  such  a  portion  of  the  colonial 
domestic  debt  as  corresponded  to  the  same  territory. 

The  Aranjuez  Cedula  describes  the  limits  of  Costa  Rica  by 
saying,  from  the  mouth  of  El  Desaguadero  to  Veraguas. 

Your  Excellency  says  that  the  San  Juan  river  is  not  the 
same  stream  called  Desaguadero  in  the  Cedula  referred  to. 
But  in  the  despatch  of  the  10th  of  June  I  had  the  honor  to 
tell  Your  Excellency  what  follows  : 

"  It  is  very  important  for  all  nations  to  fix  their  limits  with 
foreign  countries,  and  the  dividing  lines  between  their  prov- 
inces. For  this  purpose,  whenever  practicable,  ranges  of 
mountains,  rivers,  lakes,  or  seas  are  always  looked  for.  In 
the  councils  of  the  King  of  Spain  this  well-known  truth  was 
taken  into  consideration,  and  in  marking  the  limit  between 
Costa  Rica  and  Nicaragua  the  most  striking  and  natural  pos- 
sible line,  that  is,  the  San  Juan  river,  was  chosen." 

To  this  remark  Your  Excellency  has  not  been  pleased  to 
give  any  answer. 

According  to  historian  Juarroz,  the  southern  bank  of  the 
San  Juan  river  was  reputed  to  belong  to  Costa  Rica,  and  this 
proves  that  the  San  Juan  river  is  the  same  which  was  for- 
merly called  Desaguadero. 

The  ancient  names  of  the  rivers  which  empty  into  the  San 
Juan  on  the  Costa  Rican  side  prove  the  same  assertion. 
The  river  which  runs  near  Castillo  Yiejo  is  called  on  the  old 
maps  "  Rio  de  Costa  Rica." 

To  maintain  that  the  "  Desaguadero "  is  not  the  same 
San  Juan  river.  Your  Excellency  has  referred  to  "  Cedulas," 
geographers,  and  tradition  ; ,  and  Your  Excellency  will  allow 
me  to  say  that  neither  those  Cedulas  have  yet  been  produced, 
nor  the  names  of  those  geographers  have  been  given. 

In  regard  to  tradition,  Your  Excellency  knows  very  well 
that  it  is  founded  on  a  chain  of  competent  writers,  who,  for  an 
uninterrupted  series  of  years  or  centuries,  record  as  certain 
some  facts  witnessing  an  uniform  belief  in  their  existence. 

I  do  not  know  of  any  such  series  of  writers  serving  as 


283 

foundation  to  the  tradition  which  Your  Excellency  speaks 
of;  and  on  the  contrary  the  writers  from  whom  I  have 
allowed  myself  to  quote  demonstrate  not  only  that  there 
is  not  the  absolute  agreement  of  belief  in  favor  of  the  opin- 
ion which  Your  Excellency  maintains,  but  that  on  the  con- 
trary there  is  a  current  of  belief  in  a  sense  entirely  opposite. 

Your  Excellency  says  that  the  grant  made  by  the  King  of 
Spain,  in  favor  of  Artieda  Chirinos,  was  on  condition  that 
he  should  conquer  all  the  territory  spoken  of  by  the 
Aranjuez  Cedula. 

But,  Mr.  Minister,  Pedrarias  had  began  the  conquest  of 
that  territory  before  Artieda  Chirinos.  The  latter  continued 
it,  and  his  successors  consummated  it.  So  one  of  the  above- 
named  writers  sets  forth,  quoting  from  the  Decades  of 
Herrera  and  from  other  authors. 

So  that  even  if  the  rights  of  Artieda  would  have  been 
conditional,  the  condition  was  complied  with. 

Furthermore,  Costa  Eica  promulgated  its  fundamental 
law  in  the  year  1825.  By  it  (Article  XV)  the  mouth  of  the 
San  Juan  river  was  designated  as  the  limit  with  Nicaragua, 
and  the  neighboring  Kepublic  did  not  make  any  claim 
against  this  designation. 

The  Congress  of  Central  America  accepted  the  Costa 
Rican  Constitution,  and  the  federal  authorities  respected  it 
until  the  compact  of  the  union  was  dissolved  in  1839. 

The  treaty  of  limits  is  objected  to  on  the  ground  that  con- 
stituent Congresses  do  not  ratify  treaties ;  that  the  Constitu- 
ent Assembly  of  Nicaragua  which  ratified  our  treaty  acted  as 
if  it  were  an  ordinary  Congress ;  and  that  this  being  so  it 
had  no  power  to  change  the  fundamental  laws  of  Nicaragua 
in  regard  to  limits. 

This  argument,  Mr.  Minister,  only  deserves  examination 
because  the  person  who  makes  it  has  just  been  the  Secretary 
of  Foreign  Relations  of  Nicaragua,  and  is  Lie.  Don  Tomas 
Ayon. 

The  Congresses  or  Assemblies  are  the  powers  in  which  the 


284 

faculty  of  enacting  laws  is  vested.  There  are  two  classes  of 
laws:  one  the  fundamental  or  organic,  and  the  other  the 
secondary  or  municipal. 

The  series  of  fundamental  or  organic  laws  constitutes  what 
is  called  the  Constitution.  And  the  collection  of  secondary 
or  municipal  laws,  which  receive  different  names  according 
to  the  category  to  which  they  belong,  form  what  is  called  the 
municipal  law  of  each  country. 

The  Constitution  is  the  foundation  and  basis  of  all  munici- 
pal laws,  and  to  enact  or  frame  it  more  power  and  more 
authority  is  needed  than  for  framing  or  enacting  municipal 
laws. 

Constituent  Assemblies  are  the  supreme  legislative  power, 
and  they  can  enact  and  frame  not  only  organic  laws  but  also 
statutes  of  other  kinds  for  which  less  power  is  required. 

The  different  Constituent  Cortes  which  have  been  held  in 
Spain  are  good  proof  of  this  well-known  truth. 

The  Constituent  Assembly  of  France  did  not  only  proclaim 
the  principles  of  1789  and  the  basis  of  the  Constitution,  but 
also  aboHshed  the  tithes,  took  measures  against  nobility,  and 
promulgated  decrees  of  other  kinds. 

The  other  Assemblies  which  have  met  on  the  French  soil 
have  likewise  enacted  both  fundamental  and  municipal  laws. 

The  English  Parliament,  which  is  an  ordinary  legislative 
power,  has  also  the  faculty  to  amend  laws  of  organic  charac- 
ter, which  is  tantamount  to  exercising  both  legislative  and 
constituent  authority. 

No  objection  can  be  founded,  as  far  as  treaties  are  con- 
cerned, on  the  fact  that  in  England  the  ratification  thereof 
belongs  to  the  Crown,  because  this  ratification  by  the  Crown 
is  not  sufficient  when  the  laws  of  England  are  modified  by 
the  treaty. 

The  Treaty  of  Utrecht  between  England  and  France  was 
not  carried  into  effect,  because  the  English  Parliament  re- 
fused to  pass  the  bill  introduced  on  it  giving  sanction  to  the 
modification  made  by  said  treaty  to  the  English  laws  on  navi- 
gation and  commerce. 


285 

In  England  Parliament  has  to  take  cognizance  of  all  treaties 
by  which  Great  Britain  is  bound  to  pay  any  sums  of  money. 

Without  going  outside  of  the  Central  American  limits,  we 
find  Constituent  Powers  to  have  enacted  municipal  laws  or 
statutes  and  approved  of  treaties. 

The  treaty  between  Costa  Eica  and  Guatemala  of  March 
10,  1848,  was  ratified  in  the  latter  Republic  by  a  Constituent 
Assembly,  and,  nevertheless,  no  one  of  our  public  writers  has 
ever  said  that  that  treaty  was  null  because  Constituent  Bodies 
cannot  ratify  public  treaties. 

Senor  Ayon,  in  his  capacity  of  Secretary  of  Foreign  Rela- 
tions of  Nicaragua,  sent  a  despatch  to  this  Department,  un- 
der date  of  August  20, 1870,  asking  that  the  Constituent  Con- 
gress of  this  Republic  should  approve  of  certain  modifications 
made  to  a  treaty.  And  from  this  it  is  to  be  concluded  that, 
while  Senor  Ayon,  as  Secretary  of  State,  believed  that  Con- 
stituent Congresses  have  the  power  to  ratify  treaties,  as  a 
writer  of  pamphlets  affirms,  however,  that  they  have  no  such 
power. 

Constituent  Congresses  which  have  authority  to  enact  or- 
ganic laws,  which  is  the  greatest  power,  certainly  have  au- 
thority to  enact  municipal  laws  or  statutes,  which  is  the 
least. 

Constituent  Congresses  lack  only  the  power  to  enact  those 
municipal  laws  or  statutes  when  their  convocation  clearly 
and  explicitly  stated  that  their  only  power  was  to  frame  the 
Constitution. 

In  that  case  the  people  elected  their  representatives  for 
that  purpose,  and  for  nothing  else. 

But  the  Constituent  Assembly  of  Nicaragua,  which  ratified 
the  treaty  of  limits,  was  not  convoked  exclusively  to  frame 
the  organic  law,  and  this  ex-Secretary  Ayon  himself  takes 
pains  to  explain  in  his  pamphlet  of  the  10th  of  July  instant. 

But  even  if  the  said  Assembly  would  have  had  only  the 
power  to  enact  organic  laws,  it  would  also  have  had  the 
power  to  ratify  the   treaty  of   limits  under  the   doctrines 


286 

which  the  Department  of  Foreign  Eelations  of  Nicaragua 
holds  to  be  correct. 

Your  Excellency  says  that  all  provisions  about  limits  be- 
long to  the  category  of  organic  laws  ;  and,  therefore,  under 
this  doctrine,  a  constituent  assembly  is  precisely  the  one 
which  ought  to  have  approved  the  treaty,  because  constitu- 
ent powers  are  those  which  can  enact  organic  laws. 

The  subtle  distinction  made  by  Ex-Secretary  Ayon  that 
the  Constituent  Assembly  of  Nicaragua  which  ratified  the 
treaty  did  so  as  an  ordinary  assembly  and  not  as  a  constituent 
power  cannot  satisfy  any  one. 

That  Assembly  was  vested  with  the  august  constituent 
power,  the  first  and  the  highest  of  all,  a  power  which  is  never 
delegated,  nor  could  it  delegate ;  and  all  its  acts  ought  to  be 
considered  as  performed  in  such  a  high  capacity. 

I  believe,  Mr.  Minister,  that  it  is  entirely  useless  to  officially 
continue  this  discussion  because  there  is  no  authority  which 
can  settle  the  controversy.  If  there  were  a  tribunal  of  arbitra- 
tion to  which  the  matter  could  be  referred,  then  it  would  be 
proper  to  submit  to  it  exhaustive  arguments  on  the  subject ; 
but  there  is  no  such  a  tribunal  in  existence,  nor  has  the 
Republic  of  Nicaragua  been  pleased  to  suggest  its  estab- 
lishment. 

It  is  of  no  use  to  state  and  prove  that  the  treaty  of  limits 
was  made  by  Plenipotentiaries  fujly  authorized  and  compe- 
tent to  do  so ;  that  it  was  approved  by  the  Governments  of 
Costa  Rica  and  Nicaragua ;  that  it  was  ratified  by  the  Con- 
gress of  Costa  Rica  and  by  the  Constituent  Assembly  of 
Nicaragua ;  that  the  exchange  of  ratifications  took  place ;  that 
the  treaty  was  solemnh^  published  as  the  law  of  the  land  con- 
cerning limits ;  that  it  has  been  carried  into  effect  and  obeyed 
and  respected  for  14  consecutive  years,  during  which  it  has 
been  used  by  the  Congresses  of  Nicaragua  as  the  basis  of  their 
deliberations,  inasmuch  as  the  true  reason  to  oppose  the  treaty 
is,  as  explained  to  our  Minister  in  Managua  by  General 
Zavala,  competently  authorized  by  the  Government  of  Your 


287 

Excellency  to  discuss  this  subject,  not  because  the  said  treaty 
lacks  any  indispensable  solemnity  for  its  validity,  but  because 
it  is  believed  to  be  injurious  to  the  interests  of  Nicaragua. 

This  assertion  of  General  Zavala  has  been  corroborated  by 
the  Nicaraguan  press,  which  has  gone  as  far  as  saying  that 
the  repudiation  of  the  treaties,  when  injurious,  has  prevailed 
in  all  nations  when  able  to  cause  them  to  prevail ;  that  Na- 
poleon III  nullified  the  treaties  of  1815  ;  that  Germany 
broke  the  treaty  by  which  Eichelieu  had  taken  from  her 
Alsace  and  Lorraine  ;  that  Russia  has  asked  to  be  exempted 
from  the  obligation  contracted  in  the  treaty  of  Paris,  and 
that  Austria  wiU  break  also  the  Villafranca  treaty. 

But,  Mr.  Minister,  if  I  should  propose  to  enter,  to-day, 
into  the  analysis  of  this  question,  I  would  show  that  neither 
Napoleon  III,  nor  Germany,  nor  any  one  of  the  nations 
which  you  refer  to,  has  ever  said,  "  We  do  not  respect  that 
treaty,  because  it  is  injurious  to  us ;  we  do  not  respect  it, 
because  we  were  compelled  to  sign  it." 

What  has  often  happened  is,  that  the  circumstances  and 
interests  of  the  nations  having  been  modified,  the  pre-existing 
conventions  have  had  to  be  modified  also,  either  by  mutual 
consent  or  by  force ;  but,  in  this  condition,  neither  Costa 
Rica  nor  Nicaragua  find  themselves. 

In  my  despatch  of  the  10th  of  June,  it  was  gratifying  to 
me  to  set  forth  that  at  the  time  in  which  the  treaty  was 
signed  Costa  Rica  did  not  overpower  Nicaragua  ;  that  it  was 
a  friendly  nation,  a  sister  which  had  come  to  her  territory  to 
assist  her  in  her  war  of  independence  and  render  her  efi&cient 
aid  against  an  enemy  who  had  proclaimed,  on  her  soil,  slavery 
and  death. 

The  disastrous  discord  between  Leon  and  Granada,  and 
the  bitter  opposition  between  the  parties  which  called  them- 
selves Legitimists  and  Democrats,  attracted  to  Nicaragua  the 
filibuster  invasion.  And  when  that  Republic  was  invaded 
the  Costa  Rican  people  shed  their  blood  and  spent  their  for- 
tunes to  save  Nicaragua  from  foreign  domination. 


288 

.Costa  Rica  took  possession  of  the  steamers  of  the  lake  and 
of  the  San  Juan  river,  carried  its  flag  in  triumph  up  to  Punta 
de  Castilla,  prevented  the  filibusters  from  entering  the  great 
fluvial  way,  and  put  an  end  to  the  exterminating  war  which 
afflicted  Nicaragua. 

Your  Excellency  will  allow  me  to  say  that  I  cannot  under- 
stand how  these  acts  of  redemption  can  now  be  made  the 
basis  of  a  charge  against  Costa  Rica  and  the  foundation  for 
the  statement  that  the  treaty  is  null,  without  considering  that 
the  invalidity  of  the  same  will,  no  doubt,  bring  new  calam- 
ities upon  the  two  sister  and  bordering  Republics.     *     ^     ^ 

Mr.  Minister,  the  above-made  statements  are  explicit,  very 
explicit  indeed.  They  explain  that  the  customs  service  is  au- 
thorized only  for  the  purposes  herein  designated,  and  for 
nothing  else  ;  and  that,  therefore,  the  action  of  the  officers 
thereof  will  be  approved  by  the  Government  of  Costa  Rica, 
when  circumscribed  to  the  Hmits  set  forth  in  the  paragraph 
above  copied,  and  disapproved  when  extended  to  more  than 
allowed  by  the  language  of  the  same  paragraph. 

The  practice  among  nations,  and  the  writings  of  the  authors 
on  public  law,  show  to  us  that  the  free  navigation  of  the 
rivers  is  obtained  by  conventions  made  with  the  states  through 
the  territory  of  which  they  pass.  It  was  by  treaty  that  the 
free  navigation  of  the  Rhine  was  obtained.  It  was  by  treaty 
that,  in  the  latter  part  of  the  last  century,  the  free  navigation 
of  the  Scheldt  river  was  obtained.  It  was  by  treaty  also  that 
the  free  navigation  of  the  Elbe,  the  Po,  the  Danube,  the  Mis- 
sissippi, the  St.  Lawrence,  the  La  Platta,  and  the  Amazon 
rivers  was  also  obtained.  This  universal  practice  must  serve 
Costa  Rica  as  a  guide  in  regard  to  the  free  navigation  of  the 
Colorado  river,  so  much  the  more  so  as  this  river  is  found  in 
all  its  extent  within  the  Costa  Rican  territory. 

The  writers  of  public  law  agree,  in  regard  to  this  kind  of 
rivers,  in  the  doctrine  that  the  state  to  which  they  belong 
can  legislate  in  regard  to  them  as  they  may  deem  best. 

Costa  Rica,  taking  the  most  liberal  point  of  view  possible, 


289 

provided,  by  Article  XII  of  its  Constitution,  that  foreigners 
may  exercise  their  industry  and  commerce,  own  real  estate, 
purchase  and  manage  the  same,  navigate  the  rivers,  and  freely 
exercise  their  religion.  Under  this  provision  all  Nicaraguans 
can  navigate  the  Colorado  river  with  no  more  limitations  than 
those  prescribed  by  the  revenue  laws  to  prevent  smuggling. 

These  revenue  laws  are  limited  to  what  I  explained  to  you 
in  my  despatch  of  the  10th  of  June,  and  which  I  have  re- 
peated in  the  present ;  and  beyond  that  they  do  not  go. 

In  order  that  the  interest  of  Costa  Eica  may  not  suffer 
detriment  and  that  Nicaragua  is  not  injured,  and  that  the 
freedom  of  navigation  on  the  river  is  not  interrupted,  it 
would  be  advisable  to  resort  to  some  means  suggested  by 
mutual  consent.  His  Excellency  the  Chief  Magistrate  of 
this  country  will  hear  with  pleasure  anything  which  the 
Government  of  Nicaragua  should  suggest  in  this  respect, 
because  what  he  wishes  is  a  peaceful  and  friendly  adjust- 
ment. 

I  believe  that  the  Government  of  Your  Excellency  feels 
itself  animated  by  the  same  sentiments ;  and  in  this  confi- 
dence I  have  the  honor  to  repeat  that  I  am.  Your  Excellency's 
most  obedient  servant, 

LOKENZO  MONTUEAE. 

To  His  Excellency  The  Minister  of  Foreign  Eelations  of 
the  Eepublic  of  Nicaragua. 
19 


290 

No.  58. 

Costa  Rica  declares  that  it  will  keep  its  custom-houses,  and 
maintain  its  sovereignty  over  the  whole  territory  which  ac- 
cording to  the  treaty  of  1858  belongs  to  it,  unless  other 
limits  are  not  established  by  Tnutual  agreement  or  arbitral 
decision. 

San  Jose,  December  3,  1875. 
Mr.  Minister  :  I  have  the  honor  to  acknowledge  the  receipt 
of  the  official  communication  which  jou  were  pleased  to  send 
me  under  date  of  November  3  ultimo,  which  did  not  reach 
me  imtil  the  30th.     ^     *     ^ 

You  will  allow  me,  Mr.  Minister,  in  referring  to  the  sub- 
ject-matter of  your  despatch,  to  set  forth  that  the  custom- 
house force,  because  it  is  nothing  else,  referred  to,  is  not 
a  part  of  the  military  forces  of  this  Republic,  and  it  is 
the  same  and  even  smaller  than  the  one  which  in  former  times 
the  Government  of  Costa  Rica  used  to  keep  stationed  either 
at  the  mouth  of  the  San  Carlos  river,  or  on  the  Sarapiqui,  or 
the  Colorado  river,  or  Punta  de  Castilla  ;  and  as  neither  its 
establishment  nor  its  preservation  on  any  of  those  points  can 
be  considered  as  a  wrong  done  to  Nicaragua,  or  an  abridg- 
ment of  her  territorial  rights,  my  Government  sets  forth  that 
in  the  use  of  the  rights  that  the  treaty  of  April  15,  1858,  gives 
it  on  that  territory,  and  within  the  limits  by  the  same  treaty 
prescribed,  it  wiU  exercise  such  acts  of  dominion  and  sover- 
eignty as  may  be  proper  as  long  as  by  decision  of  an  Arbi- 
trator, to  whom  it  has  offered  to  submit  the  question  of  the 
validity  of  the  same  treaty,  the  invalidity  of  that  instrument 
is  not  declared,  or  as  long  as  by  an  act  of  the  same  Arbi- 
trator, or  by  mutual  agreement  of  the  two  Governments,  other 
boundaries  are  not  marked  out. 

With  the  greatest  consideration  I  renew  to  you  my  re- 
spects, and  subscribe  myself  your  attentive  servant, 

VICENTE  HERRERA. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua. 


291 


No.  59. 


Costa  Rica  protests  against  the  non-compliance  07i  the  part  of 
Nicaragua  of  Article  VIII  of  the  treaty  of  limits. 

National  Palace, 
San  Jose,  June  26,  1886. 

To  His  Excellency  the  Minister  of  Foreign  Relations  of 
Nicaragua^  Managua. 

Sib  :  The  courteous  despatcli  of  Your  Excellency  of  the 
31st  of  May  ultimo,  in  reference  to  Nos.  21  and  23  of  the 
official  "  Gaceta  "  of  your  Republic,  has  reached  my  hands, 
together  with  the  said  newspaper. 

In  the  latter  one  it  appears  published  as  a  law  of  this  Re- 
public the  contract  of  a  maritime  interoceanic  canal,  cele- 
brated by  your  Government  with  the  "  Provisional  Company 
of  Interoceanic  Canal,"  organized  in  New  York. 

His  Excellency  the  President,  well-informed  of  that  im- 
portant document,  has  directed  me  to  answer  Your  Excellency 
as  follows  : 

While  it  is  true  that  by  Article  XXIII  of  the  contract, 
the  dividing  line  established  by  Article  II  of  the  treaty 
of  April  15,  1858,  between  this  Republic  and  yours  has 
been  respected,  it  is  also  true  that  the  provisions  of  Article 
VIII  of  the  same  treaty  has  not  been  complied  with. 
Said  Article  reads :  "  Article  VIII.  If  the  contracts 
OF  canalization  or  transit  which  have  been  celebbated  by 

THE  GoVEBNMENT  OF  NiCABAGUA,  BEFOBE  IT  HAD  KNOWLEDGE  OF 
THIS  TBEATY,  SHOULD  FOB  ANY  BEASON  WHATSOEVEB  PBOVE  TO  BE 
WITHOUT  FOBCE,  NiCABAGUA  BINDS  HEBSELF  NOT  TO  ENTEB  INTO 
ANY  OTHEB  AGBEEMENTS  TO  THE  SAME  EFFECT  WITHOUT  FIBST 
LISTENING  TO  THE  OPINION  OF  THE  GoVEBNMENT  OF  CoSTA  RiCA 
AS  TO  THE  DISADVANTAGES  THAT  THE  TBANSACTION  WOULD  PBODUCE 
FOB  BOTH  COUNTBIES,  PBOVIDED  THAT  THE  SAID  OPINION  IS  GIVEN 
WITHIN  30  DAYS  SUBSEQUENT   TO   THE  RECEIPT  OF  THE  COMMUNI- 


292 

CATION  ASKING  FOR  IT,  SHOULD  NICARAGUA  HAYE  STATED  THAT 
THE  DECISION  WAS  URGENT  ;  AND  IF  THE  NATURAL  RIGHTS  OF 
CoSTA  EiCA  ARE  NOT  INJURED  BY  THE  TRANSACTION  THE  OPINION 
WILL  BE  ADVISORY." 

Besides  this  it  appears,  as  being  almost  an  impossibility, 
that  the  building  of  the  canal  under  the  conditions  agreed 
upon  fails  to  affect  the  territorial  rights  of  Costa  Rica,  since 
Costa  Rica  owns,  in  common  with  Nicaragua,  the  Bay  and 
port  of  San  Juan  del  Norte,  and  has  also  in  common  the 
free  navigation  of  the  river  of  the  same  name,  and  exclu- 
sively from  the  mouth  of  the  river  in  the  Atlantic  up  to  a 
point  three  miles  this  side  of  Castillo  Yiejo,  the  right  bank, 
and  the  Colorado  river. 

Great  is  the  confidence  that  my  Government  reposes  in 
the  high  sense  of  justice  of  the  Government  of  Your  Excel- 
lency, for  which  reason  it  is  impossible  for  it  to  think  that 
the  non-compliance  with  Article  VIII  has  been  due  to  the 
evil  purpose  of  violating  the  faith  of  a  treaty  and  of  break- 
ing faith  with  this  Republic  which  is  the  most  intimately  con- 
nected with  Nicaragua  in  family  relations,  interests,  and  des- 
tinies, and,  at  the  same  time,  with  justice  and  honor. 

My  Government  expects,  with  good  foundation,  that  the 
cause  of  the  action  referred  to  is  to  be  found  elsewhere,  and 
that  it  does  not  involve  injury,  nor  does  it  prevent  the  omis- 
sion noticed  from  being  corrected. 

But  as  long  as  such  explanations  as  are  competent  from 
the  enlightened  Government  of  Your  Excellency  do  not  give 
the  fact  alluded  to  its  correct  meaning,  the  fact  itself  is  to  be 
declared  inadmissible. 

Costa  Rica  does  not  consent  to  it,  not  because  it  is  moved 
by  material  interests  which  it  willingly  would  sacrifice  for  the 
sake  of  another  greater  and  more  important  benefit  for  the 
whole  of  Central  America,  as  the  canal  in  question  is,  a  work 
of  which  the  Costa  Rican  press  has  occupied  itself  with  great 
enthusiasm,  and  in  which  my  Government  has  always  been 
ready  to  co-operate  in  all  earnest,  but  because  its  honor  and 


293 

dignity  so  demand  it,  and  the  honor  and  dignity  of  a  nation 
are  above  everything  else. 

My  Government  expects  that  the  Government  of  Your 
Excellency,  without  any  injury  to  its  own  sense  of  self-respect, 
since  to  recognize  the  rights  of  others  is  never  wrongful,  will 
find  the  means  that  the  rights  of  Costa  Eica  remain  respected, 
and  that  the  harmony  which  now  exists  between  both  Re- 
publics and  which  may  exercise  such  beneficial  influence  on 
their  common  future  does  not  suffer  detriment.  But  as  long 
as  the  above  said  omission  is  not  corrected  in  some  pertinent 
way,  my  Government  sees  itself  compelled  to  protest  against 
the  validity  of  the  canal  contract  concluded  in  Managua  on 
the  25th  of  May  ultimo,  without  previous  audience  of  Costa 
Rica  and  in  violation  of  the  article  above  copied  of  the  treaty 
of  April  15,  1858. 

May  Your  Excellency  be  pleased  to  submit  the  above  to 
Hig  Excellency  the  President  of  your  Republic  and  accept 
the  distinguished  consideration  with  which  I  subscribe  my- 
self, your  most  attentive  and  obedient  servant, 

JOSE  MARIA  CASTRO. 


294 


No.  60. 

The  explanations  of  Nicaragua  as  to  the  non-compliance  with 
Article  YIII  of  the  treaty  of  limits  are  accepted. 

Depaktment  of  Foreign  Eelations  of  the 
Kepublic  of  Costa  Eica, 

National  Palace, 
San  Jose,  Septeinher  10,  1886. 

Sir  :  This  Department  has  received  the  courteous  despatch 
of  Your  Excellency,  dated  on  the  23d  of  July  ultimo,  in 
answer  to  mine  of  the  21st  of  June  instant,  wherein  I  had 
protested  against  the  validity  of  the  canal  contract  celebrated 
between  Nicaragua  and  the  Provisional  Company  of  Inter- 
oceanic  Canal,  organized  in  New  York. 

The  explanations  given  by  Your  Excellency  in  regard  to 
the  causes  which  prevented  the  Supreme  Government  of  your 
Eepublic  from  complying  with  the  provisions  of  Article  YIII 
of  the  treaty  of  April  15,  1858,  are  satisfactory  to  the  Gov- 
errunent  of  this  Eepublic.  So  it  was  desired  by  this  Govern- 
ment, which  was  sorry  to  find  that  national  dignity  opposed 
an  obstacle  to  its  wishes  under  other  aspects  of  being  pro- 
pitious to  a  contract  of  such  vital  importance  for  the  whole 
of  Central  America. 

Without  prejudice  to  what  I  have  stated,  and  referring  to 
the  idea  enunciated  by  Your  Excellency,  that  the  validity  of 
the  treaty  of  April  15,  1858,  has  not  been  recognized  by  Nic- 
aragua, I  must  tell  Your  Excellency  that,  although  in  the 
opinion  of  my  Government  the  said  validity  rests  upon  in- 
destructible grounds,  and  admits  of  the  best  defence,  it 
deems  it  better  not  to  discuss  at  present  the  said  question, 
both  because  of  the  unpleasant  feelings  to  which  it  has  given 
rise  at  other  times,  and  because  this  Government  will  readily 
accede  to  the  rescission  of  the  aforesaid  treaty^  and  agree  that 
things  coine  hack  to  the  state  in  which  they  were  hefore  April 
15,  1858,  provided  that  the  Governvxent  of  Your  Excellency 


295 

is  the  one  which  suggests  such  a  thing,  since  Costa  Rica  does 
not  want  to  take  the  initiative  in  the  matter. 

I  avail  myself  of  this  opportunity  to  reiterate  to  Your  Ex- 
cellency the  protests  of  high  consideration  with  which  I  sub- 
scribe myself,  your  obedient  servant, 

JOSE  MARIA  CASTRO. 

To  His  Excellency  The  Minister  of  Foreign  Relations  of 
the  Republic  of  Nicaragua,  Managua. 


296 


Document  No.  61. 

Opinion  of  the  historian  of  Central  A7?ierica,  Dr.  Don  Lo- 
renzo Montufar^  at  present  the  Secretary  of  State  of  the 
Refuhlic  of  Guatemala  J  in  regard  to  the  treaty  of  limits 
between  Costa  Rica  and  Nicaragua. 

This  high  body  (the  Central  American  Congress)  never  took 
further  action  upon  this  subject  (the  secession  of  Nicoya),  and 
the  Federation  was  dissolved,  Guanacaste  remaining  united  to 
Costa  Kica.  Nicaragua  never  showed  herself  satisfied  with 
this  diminution  of  her  territory,  but  never  thought  it  advis- 
able to  raise  an  army  to  obtain  the  recovery  of  what  she 
thought  to  be  her  property.  The  whole  question  became 
reduced  to  diplomatic  missions,  or  pamphlets,  or  printed 
sheets,  more  or  less  offensive.  The  Walker  war  caused  the 
Central  American  people  to  understand  that  this  everlasting 
discord  between  two  countries,  equally  interested  in  main- 
taining the  independence  proclaimed  in  September,  might  be- 
come utterly  injurious  to  all. 

Through  the  action  of  the  other  Governments,  and  es- 
pecially of  the  Government  of  Salvador,  a  treaty  of  limits 
was  resorted  to  to  settle  the  question. 

The  treaty  was  made  and  signed  by  the  Plenipotentiaries 
Gen.  Don  Jose  Maria  Canas  and  Gen.  Don  Maximo  Jerez. 
This  treaty  was  ratified,  exchanged,  and  promulgated  as  law 
of  limits.  Subsequently  there  have  been  questions  in  regard 
to  its  validity.  It  is  necessary  to  give  an  idea  of  the  ques- 
tion of  limits  between  Costa  Kica  and  Nicaragua,  not  with 
the  particularity  of  details  with  which  both  Governments 
have  treated  it  in  their  messages,  their  official  notes  and 
their  reports,  and  the  respective  legislative  bodies,  because  this 
would  be  to  increase  too  much  the  size  of  the  present 
volume,  but  as  laconically  as  possible.  The  importance  of 
this  question  depends  upon  the  hopes  frequently  entertained 


297 

that  an  international  canal  will  be  finally  opened.  From  the 
times  of  the  conquest  a  passage  from  sea  to  sea  across  the 
American  continent  was  looked  for.  Magellan  found  the  straits 
that  bear  his  name,  but  his  discovery  does  not  satisfy  the  aspi- 
rations of  the  world  because  it  is  very  near  Cape  Horn.  The 
eyes  of  the  intelligent  have  fixed  themselves  sometimes  on  the 
Darien,  sometimes  on  Tehuantepec  or  other  places  more  or 
less  adequate,  and  sometimes  on  the  Isthmus  of  Nicaragua. 
The  Spanish  Cortes  advocated  the  latter  idea.  There  is  in 
favor  of  it,  not  only  the  limited  extent  of  the  Isthmus,  but 
also  the  existence  of  two  lakes,  namely,  the  one  of  Granada 
and  the  one  of  Managua.  The  project  is  to  cause  the  vessels 
to  reach  the  Lake  of  Granada  through  the  San  Juan  river, 
and  from  there  to  pass  into  the  Pacific  Ocean.  Two  means 
have  been  suggested  for  that :  one  consisting  in  cutting 
the  ground  between  the  Lake  of  Granada  and  the  Pacific 
Ocean,  and  the  second  consisting  in  canalizing  the  Tipitapa 
river,  take  it  to  the  Managua  Lake,  and  from  there  open  a 
canal  to  the  Southern  Sea. 

The  enterprise  is  vast,  but  many  engineers  and  a  great 
number  of  scientists  have  thought  it  practicable ;  and  there 
have  been  Nicaraguan  patriots  who  have  sometimes  imagined 
that  the  vessels  were  already  passing  from  one  ocean  to  the 
other. 

Those  who  believe  the  great  canal  to  be  practicable  feel  a 
great  interest  in  the  demarcation  of  the  dividing  line  between 
Costa  Rica  and  Nicaragua,  because  the  share  that  Costa  Rica 
wiU  have  in  the  canal  will  depend  upon  it. 

The  historian  Juarroz,  in  speaking  of  the  Costa  Rican  terri- 
tory, says :  "  Its  boundaries  on  the  Northern  Sea  are  from  the 
mouth  of  the  San  Juan  river  to  the  Escudo  of  Yeragua,  and 
on  the  south  from  the  Alvarado  river,  dividing  line  of  the 
Province  of  Nicaragua,  to  the  Boruca  river,  end  of  the  King- 
dom of  Tierra  Firma." 

Don  Felipe  Molina  says  the  same  thing  ;  but  the  testimony 
of  Molina  may  with  reason  be  impeached,  because,  when  he 


298 

wrote,  he  was  in  the  service  of  Costa  Eica,  and,  therefore,  he 
had  an  interest  in  securing  the  triumph  of  the  cause  entrusted 
to  his  defence,  not  only  for  the  benefit  of  Costa  Eica,  but  for 
his  own  reputation. 

But  the  testimony  of  Juarroz  is  unimpeachable.  Juarroz 
wrote  in  Guatemala,  and  had  no  reason  of  any  kind  to  feel 
any  more  affection  for  Costa  Eica  than  for  Nicaragua.  He 
based  his  statements  upon  the  documents  he  had  before  his 
eyes,  and  these  completely  authorize  his  assertions. 

Philip  II,  King  of  Spain  and  of  the  Indies,  signed  at 
Aranjuez  the  commission  of  Don  Diego  de  Artieda  y  Chiri- 
nos  as  Governor  and  Captain -General  of  the  Province  of 
Costa  Eica,  and  marked  as  the  limits  of  his  command  from 
the  mouth  of  the  Desaguadero  (outlet),  which  is  the  San 
Juan  river,  to  the  Province  of  Yeraguas,  and  from  the  limits 
of  Nicaragua  on  the  Nicoya  side  to  the  valleys  of  Chiriqui. 

The  limits  between  Costa  Eica  and  Nicaragua  being  the 
Desaguadero  (outlet),  it  is  indubitable  that  Costa  Eica  has  a 
part  in  the  interoceanic  canal,  because  it  is  precisely  through 
that  outlet  that  the  vessels  are  to  be  introduced  from  the 
Atlantic  into  the  Lake  of  Granada.  But  no  part  belongs  to 
Costa  Eica  on  the  navigation  through  the  lake,  because  the 
Salto  or  Alvarado  river  serves  as  a  limit. 

An  event  came  to  favor  Costa  Eica,  and  this  was  the  an- 
nexation of  Guanacaste,  whose  limits  extend  to  the  La  Flor 
river.  By  virtue  of  this  annexation  the  boundary  between 
Costa  Eica  and  Nicaragua  was  the  Great  Lake  and  the  whole 
San  Juan  river. 

The  Federal  Congress  approved  the  annexation,  but  not 
finally.  The  approval  was  temporary,  until  Congress,  in  use 
of  its  powers,  should  fix  the  limits  of  each  State.  But  the 
Federation  was  dissolved  and  the  limits  were  never  fixed. 

Nicaragua  claimed  several  times  the  restoration  of  Guana- 
caste,  but  Costa  Eica  refused  to  surrender  it.  This  claim 
gave  occasion  to  several  acts  of  the  people  of  Guanacaste 
favoring  their  annexation  to  Costa  Eica  ;  and  the  Quijano 


299 

attempt  of  1836  shows  that  they  were  very  well  pleased  with 
their  new  allegiance. 

The  unceasing  agitation  created  by  the  disagreement  of 
both  Governments  gave  occasion  to  fear  that  the  interest  of 
the  whole  of  Central  America  might  be  endangered.  The 
filibuster  war  ca^used  this  danger  to  be  serious  and  percepti- 
ble ;  and  as  soon  as  the  war  ended  the  Government  of  Sal- 
vador sent  to  Costa  Rica,  upon  agreement  with  Nicaragua, 
General  Don  Pedro  Romulo  Negrete,  in  the  capacity  of 
Envoy  Extraordinary  and  Minister  Plenipotentiary,  to  pro- 
pose some  settlement.  Gen.  Negrete  affirmatively  stated 
afterwards,  that  he  had  instructions  to  declare  war  against 
the  State  which  would  refuse  to  put  an  end  to  the  question 
by  means  of  a  treaty. 

The  Government  of  Nicaragua  sent  to  San  Jos^  Gen.  Don 
Maximo  Jerez  as  her  Plenipotentiary  ;  and  Don  Juan  Rafael 
Mora,  then  President  of  Costa  Rica,  conferred  full  powers  on 
Gen.  Don  Jos^  Maria  Canas,  who  had  distinguished  himself 
so  much  in  the  war  against  the  filibusters.  Then  the  Canas- 
Jerez  treaty  was  signed,  and  its  Article  II  reads  as  follows  : 

"  The  dividing  line  between  the  two  Republics,  starting  from 
the  Northern  Sea,  shall  begin  at  the  end  of  Punta  de  Cas- 
tilla,  at  the  mouth  of  the  San  Juan  de  Nicaragua  river,  and 
shall  run  along  the  right  bank  of  the  said  river  up  to  a  point 
three  English  miles  distant  from  Castillo  Viejo,  said  dis- 
tance to  be  measured  from  between  the  exterior  works  of 
said  castle  and  the  above-named  point.  From  here,  and 
taking  the  said  works  as  centre,  a  curve  shall  be  drawn  along 
said  works,  keeping  at  the  distance  of  three  English  miles 
from  them  in  its  whole  length  until  reaching  another  point 
which  shall  be  at  the  distance  of  two  miles  from  the  bank  of 
the  river  on  the  other  side  of  the  castle.  From  here  the  line 
shall  continue  in  the  direction  of  the  Sapoa  river  which 
empties  into  the  Lake  of  Nicaragua,  and  it  shall  follow  its 
course,  keeping  always  at  the  distance  of  two  miles  from  the 
right  bank  of  the  San  Juan,  all  along  its   windings,  up  to 


300 

reaching  its  origin  in  the  lake  ;  and  from  there  along  the 
right  shore  of  the  said  lake  until  reaching  the  Sapoa  river 
where  the  line  parallel  to  the  bank  and  shore  will  terminate. 
From  the  point  in  which  the  said  line  shall  coincide  with  the 
Sapoa  river,  a  point  which,  according  tp  the  above  descrip- 
tion, must  be  two  miles  distant  from  the  lake^  an  astronomic 
straight  line  shall  be  drawn  to  the  central  point  of  the  Sali- 
nas Bay  on  the  Southern  Sea,  where  the  line  marking  the 
boundary  between  the  two  contracting  Republics  shall  end. 

By  this  article  both  Republics  yielded  somewhat  in  their 
pretensions.  The  Costa  Rican  territory  is  not  limited  by  the 
whole  course  of  the  San  Juan  river.  It  begins  at  the  mouth 
of  this  river,  follows  its  right  bank  up  to  a  point  this  side  of 
Castillo  Viejo,  and  three  miles  distant  'from  its  fortifications. 
The  Costa  Rican  territory  does  not  reach  the  lake,  but  de- 
viates from  it,  as  expressed  by  the  treaty.  It  does  not  either 
reach  the  La  Flor  river,  but  remains  limited  to  the  centre  of 
the  Salinas  Bay. 

Nicaragua,  on  her  part,  abandoned  also  many  of  her  pre- 
tensions. Now,  her  territory  does  not  reach  the  Salto  or 
Alvarado  river,  but  is  limited  to  the  SaHnas  Bay  and  the  line 
drawn  by  the  treaty. 

This  treaty  was  made  by  two  plenipotentiaries  competently 
authorized ;  it  was  approved  by  the  trovernment  of  Costa  Rica 
and  by  the  Government  of  Nicaragua  ;  it  was  ratified  by  the 
Congress  of  Costa  Rica  and  by  a  Constituent  Assembly  of 
Nicaragua ;  the  ratifications  thereof  were  exchanged  within 
the  time  designated  in  it ;  it  was  promulgated  after  the  ex- 
change and  published  as  the  law  of  limits  in  the  official  news- 
paper of  Nicaragua.  Costa  Rica  communicated  the  treaty  to 
the  foreign  diplomatic  body  accredited  near  its  Government, 
and  also  to  its  diplomatic  body  abroad.  Nicaragua  also  com- 
municated it  to  the  Nicaraguan  and  the  foreign  diplomatic 
body,  and  all  the  friendly  nations  considered  it  as  an  accom- 
plished and  unimpeachable  fact.  For  several  years  several 
legislative  bodies  of  Nicaragua  enacted  laws  fixing  jurisdic- 


301 

tional  limits,  taking  it  for  granted  that  the  treaty  was  valid. 
The  lapse  of  seven  years  gave  it  greater  strength.  During 
that  whole  period  not  a  single  word  was  uttered  officially 
against  the  treaty. 

But  after  the  lapse  of  more  than  seven  years,  Lie.  Don 
Tomas  Ayon,  Minister  of  Foreign  Kelations  of  the  Eepublic 
of  Nicaragua,  deemed  it  advisable  to  send  a  message  to  the 
Legislative  body,  objecting  to  the  validity  of  the  treaty. 

This  came  to  pass  as  follows :  In  1868  the  Government  of 
Nicaragua,  tired  of  the  delays  of  certain  companies  in  the 
opening  of  the  canal,  entered,  in  Paris,  into  a  contract  with 
Monsieur  Michel  Chevalier,  through  the  same  Senor  Ayon. 
Chevalier  was  well  acquainted  with  the  Can  as- Jerez  Treaty, 
and  thought  that  it  was  absolutely  indispensable  to  respect 
it,  and  required  as  a  sine  qua  non  condition  that  Costa  Eica 
should  adhere  to  the  agreement.  So  it  was  stipulated  ;  and 
the  Government  of  Costa  Eica  adhered,  and  its  Congress 
ratified  the  agreement. 

Senor  Ayon  had  been  dazzled  by  the  official  position  of 
Chevalier.  He  thought  that  for  a  Senator  of  the  Empire  of 
Napoleon  III  nothing  could  be  difficult,  and  that  the  Emperor 
had  an  interest  in  the  canal,  both  for  the  sake  of  extending 
his  influence  in  the  New  World  and  also  for  the  purpose  of 
accomplishing  a  certain  scheme  which  had  been  suggested  to 
him  and  which  he  accepted  while  he  was  imprisoned  at  the 
Castle  of  Ham.  But  circumstances  had  changed.  The 
Emperor  of  the  French  was  preoccupied  with  European 
affairs,  and  a  sad  disappointment  had  shown  him  that  his  sup- 
posed omnipotence  did  not  extend  to  the  world  of  Columbus. 
Chevalier  could  not  get  the  funds  required  for  such  a  vast 
enterprise,  and  although  with  his  contract  in  his  hands  he  ap- 
plied to  the  great  capitalists  of  Europe,  and  looked  for  stock- 
holders and  partners,  he  only  received  attentions  and  fair 
words,  but  nothing  positive.  It  may  be  said  that  he  went  from 
door  to  door  asking  for  protection,  and  that  none  was  given 
him. 


302 
I 

All  of  this  was  perfectly  well  known,  both  in  Costa  Eica 
and  Nicaragua,  but  Chevalier  was  always  laboring  under  de- 
lusions, and  imagined  the  great  enterprise  to  be  accomplished 
under  his  auspices.  These  delusions  he  unceasingly  trans- 
mitted to  Senor  Ayon,  who,  having  returned  to  his  country 
from  Europe,  could  not  see,  on  account  of  the  distance,  the 
difficulties  encountered  by  Chevalier,  the  repulses  which  he 
constantly  met,  and  the  hopeless  prospects  that  the  canal 
should  be  ever  built  under  that  contract.  And  he  went  as 
far  as  to  call  unpatriotic  all  those  who  did  not  share  his 
delusions. 

The  Government  of  Costa  Eica,  well  informed  by  its  agents 
abroad  of  the  true  situation  of  Chevalier,  understood  that 
the  contract,  under  those  circumstances,  instead  of  doing  any 
good  was  really  injurious  to  Costa  Eica,  to  Nicaragua,  to 
Central  America,  and  to  the  whole  world,  because  as  long  as 
it  was  in  existence  no  further  negotiations  could  be  attempted 
either  with  the  United  States,  which  was  the  nation  called 
by  nature  to  do  the  work,  or  with  any  other  country. 

The  Costa  Eican  Executive  happened  to  be  invested  with 
unlimited  powers,  and,  after  having  meditated  carefully  upon 
the  subject,  considering  it  under  all  its  aspects,  it  decided 
to  declare  that  the  Ayon-Chevalier  contract,  as  far  as  Costa 
Eica  was  concerned,  had  become  inoperative.  This  declara- 
tion made  a  great  sensation  among  the  few  Nicaraguans  who 
still  shared  the  delusions  of  Senor  Ayon,  and  caused  them  to 
endeavor  to  destroy  the  Canas-Jerez  treaty,  with  which,  if 
obtained,  they  would  be  able  to  enter  into  canal  negotiations 
without  the  intervention  of  Costa  Eica. 

Senor  Ayon  does  not  deny  that  the  treaty  was  made  by 
legitimate  representatives  of  both  countries ;  nor  that  it  was 
approved  by  both  Executives  ;  nor  that  it  was  ratified  by  the  . 
Congress  of  Costa  Eica  and  the  Constituent  Assembly  of 
Nicaragua  ;  nor  that  the  ratifications  thereof  were  exchanged 
in  due  form ;  nor  that  the  treaty  was  solemnly  promul- 
gated in  both  countries  as  the  law  on  limits ;   nor  that  the 


303 

two  contracting  parties  respected  it  and  constantly  complied 
with  its  provisions  for  more  than  seven  years  without  any 
objection  or  opposition.  Senor  Ayon  does  not  deny  any- 
thing of  the  kind ;  but  he  grounds  his  objection  on  another 
foundation.  He  says  that  the  organic  law  of  Nicaragua 
which  marked  the  limits  of  the  state  included  the  territory 
of  Guanacaste ;  that  the  Canas-Jerez  treaty  marks  different 
limits  and  therefore  modifies  and  amends  the  Nicaraguan 
Constitution  ;  that  the  Constitution,  then  in  force  in  Nicaragua, 
provided  that  no  amendment  or  change  could  be  made  in  it  by 
a  decree  of  a  Legislature  without  the  ratification  thereof  by 
another  subsequent  Legislature  ;  that  the  Canas-Jerez  treaty 
was  ratified  by  one  Legislature,  but  that  it  was  not  even  sub- 
mitted for  approval  to  the  next  one  ;  and  that,  therefore,  there 
is  in  radice  a  cause  of  nullity. 

The  Legislative  body  of  Nicaragua  did  not  take  any  action 
upon  the  subject ;  and  the  question  remained  undisposed  of. 

Costa  Kica  has  replied  to  Senor  Ayon  stating  that  the 
Congress  which  ratified  the  treaty  of  Nicaragua  was  not  an 
ordinary  Congress  but  a  Constituent  Assembly,  having  the 
most  competent  authority  to  reform  the  Constitution  and  to 
make  a  new  one  ;  that  if  the  said  Assembly  was  convened  for 
the  purpose  of  framing  the  organic  law  of  the  state,  no  reason 
can  be  alleged  to  deprive  it  of  the  right  to  mark  the  bound- 
aries. It  has  also  been  said  that  even  in  case  that  the  As- 
sembly, instead  of  being  a  constituent  body  would  have  been 
an  ordinary  Congress,  the  treaty  would  not  be  void,  as 
claimed  by  Senor  Ayon,  for  the  reason  that  several  Nic- 
araguan Legislatures,  one  after  another,  took  it  as  valid,  firm, 
and  unimpeachable,  and  enacted  laws  according  to  its  pro- 
visions, and  established  jurisdictional  limits  in  conformity 
with  its  text. 

The  Costa  Rican  Government  always  maintained  upon 
these  grounds  the  validity  of  the  treaty,  and  it  may  be  de- 
pended upon  that  if  the  question  should  be  submitted  to  the 
arbitration  of  a  power  friendly  to  both  contracting  parties, 


304 

no  nation  in  the  world  would  declare  the  treaty  to  be  null 
upon  the  arguments  and  doctrines  of  Senor  Ayon. 

Certain  Executive  tendencies  have  sometimes  been  felt  in 
Costa  Eica,  although  unsupported  by  the  general  opinion  of 
the  Costa  Rican  people,  in  favor  of  the  invalidation  of  the 
treaty,  in  order  to  secure,  through  this  action,  that  the  bound- 
ary should  be  again  the  whole  of  the  right  bank  of  the  San 
Juan  river  from  Greytown  to  San  Carlos,  and  from  the  Lake 
of  Nicaragua  to  the  La  Flor  river,  as  it  has  been  believed  to 
be  the  limit  marked  by  nature. 

If  these  views  should  prevail,  and  the  treaty  should  be  set 
aside,  the  questions  between  Costa  Rica  and  Nicaragua  would 
become  again  very  grave  and  uncertain.  But  if  the  difficulty 
is  confined  simply  to  the  determination  of  the  question, 
whether  the  Canas-Jerez  treaty  is  or  is  not  valid,  there  can- 
not be  any  doubt  in  law  as  to  the  verdict  which  would  be 
rendered.  And  so  the  two  Republics  understand  since  they 
have  combined  to  respect  the  limits  such  as  marked  by  the 
treaty. 


305 


No.  62. 


Extracts  from  the  '^History  of  Nicaragua  from,  the  Remotest 
Times  to  the  year  1852,"  written  hy  order  of  General  Don 
Joaquin  Zavala^  President  of  the  JRepuhlic,  hy  Sehor  Dr. 
Don  Tomas  Ayon.  Vol.  I.  Granada  :  Printing  office  of  El 
Centro  Americano^  1882. — The  author  of  said  history  gives 
the  name  of  Desaguadero  to  the  San  Juan  de  Nicaragua 
river. 

From  Book  3,  Chapter  I : 

"  There  being  no  necessity  to  stop  in  the  Province  of  Nic- 
aragua, that  is  to  say,  in  the  territory  which  is  now  the  De- 
partment of  Rivas,  he  proceeded  from  Granada  to  Tina- 
bita  City  without  stopping  at  Masaya,  which  was  a  great  and 
populous  city.  Before  leaving  he  took  a  brigantine,  which 
he  caused  to  explore  the  Great  Lake^  until  finding  its  outlet 
{the  San  Juan),  but  the  brigantine  could  not  go  farther  than 
this  outlet,  because  there  were  many  rocks  and  two  great 
rapids." 

From  Book  3,  Chapter  III : 

"  In  compliance  with  royal  instructions,  he  engaged  him- 
self in  enlisting  sufficient  force  to  go,  under  the  command 
of  Captain  Gabriel  de  Rojas,  to  discover  the  outlet  (Desa- 
guadero) of  the  Lake  of  Nicaragua,  and  found  there  a  town. 
This  enterprise  was  considered  by  the  King  of  Spain  as  a 
most  important  one,  because,  after  careful  explorations  of 
the  land  and  the  lake,  he  wanted  to  establish  through  the 
said  outlet  the  communication  between  both  oceans,  and  find 
thereby  the  shortest  route  to  the  Spice  Islands." 

From  Book  3,  Chapter  II : 

"  Knowing  the  interest  which  the  court  felt  in  finding  the 
route  to  the  Moluca  Islands,  several  persons  addressed  the 
King,  and  set  forth  that,  as  the  natural  straits  of  communi- 
cation between  the  Atlantic  and  the  Pacific  Oceans  had  not 
20 


306 

been  found,  they  desired  to  call  his  attention  to  one  of  the 
four  routes  which  suggested  themselves  to  establish  com- 
munication between  both  oceans.  The  first  of  these  routes 
was  the  outlet  {the  Desaguadero)  of  the  Great  Lake  of  Nicara- 
gua, through  which  large  vessels  went  up  and  came  down,, 
although  it  has  still  some  dangerous  rapids,  and  by  opening 
a  canal  through  the  few  leagues  of  land  between  the  lake 
and  the  Pacific  Ocean  it  woidd  he  easy  for  all  vessels  to  reach 
that  ocean.  The  second  through  the  Lagartos  river,  also 
called  Chagres,  which  rises  at  about  5  or  6  leagues  from 
Panama,  where  a  canal  could  be  opened  in  order  to  connect 
the  river  with  the  ocean.  The  third,  by  the  river  of  Vera 
Cruz  or  Tehuantepec,  through  which  the  Mexican  merchants 
used  to  navigate  with  their  merchandise  from  one  sea  to  the 
other.  And  the  fourth,  the  passage  from  Nombre  de  Dios  to 
Panama,  where  it  is  assured  that  there  is  no  great  difficulty 
to  open  a  road,  although  there  are  some  mountains.  They 
also  set  forth  that  between  the  Uraba  Gulf  and  San  Miguel 
there  were  only  25  leagues,  and  that,  although  the  difficulties 
to  open  a  canal  there  would  be  great,  the  power  of  the  Kings 
of  Castile  was  still  greater.  They  said,  further,  that  the  ad- 
vantages of  the  work  were  indisputable  since  a  third  part  of 
the  distance  to  the  Moluca  Islands  could  be  saved  in  this  way, 
with  the  advantage  that  the  voyage  could  be  always  made 
within  dominions  of  Spain,  without  interference  on  the  part 
of  the  Portuguese,  and  avoiding  expense  and  labor." 

From  Book  4,  Chapter  lY : 

"  They  said  that  from  the  Lake  of  Granada  to  the  port 
of  San  Juan  del  Sur,  there  were  only  3  leagues  of  land, 
and  that  with  little  labor  and  cost  cars  could  go  from  the 
town  of  Nicaragua  (Rivas)  to  that  port ;  that  the  frigates 
and  the  other  men-of-war  used  to  pass  from  the  same  lake^ 
through  the  river  of  El  Desaguadero,  to  Nomhre  de  Dios 
on  the  Northern  Sea^  where  there  was  a  port  which  was 
considered  to  he  the  largest  and  the  hest  yet  discovered  ;  and 
that  for  these  reasons  it  was  advisable  to  order  that  the  com- 


307 

inerce  with  the  Southern  Sea  should  continue  to  he  made  hy  the 
way  of  El  Desaguadero^  saving  thereby  great  expenses  and 
trouble  which  were  encountered  at  Nornhre  de  Dios  by  those  ar- 
riving from  Spain  and  those  who^  coming  from  Peru  and 
other  lands,  proceeded  to  Spain.  They  remarked  also  that 
the  climate  of  Nombre  de  Dios  was  very  unhealthy,  and  that 
the  greatest  part  of  the  Spaniards  arriving  there  died,  and 
that  those  who  escaped  death  were  left  in  the  greatest  desti- 
tution on  account  of  the  extreme  poverty  of  the  land." 

From  Documents  appended  to  the  Book. 

"  Item.  Your  Majesty  will  know  that  between  the  Lake 
of  this  city  and  the  port  of  San  Juan  of  the  Province  of  Nic- 
aragua on  the  Southern  Sea  there  are  no  more  than  3 
leagues  by  land,  so  that,  with  very  little  labor  and  expense, 
cars  can  go  from  the  town  of  Nicaragua  to  the  port  of  San 
Juan  ;  and  from  the  Lake  of  this  city  to  the  Northern  Sea  the 
frigates  and  the  m,en-ofwar  which  leave  this  place  go  by  water 
to  Nombre  de  Dios,  by  the  river  of  El  Desaguadero^  which 
empties  in  the  Northern  Sea,  where  there  is  a  port,  the  greatest 
and  the  best  yet  discovered. 

"  For  the  reasons  and  causes  aforesaid,  and  according  to 
what  we  have  seen  here  and  experienced,  it  seems  to  us  that 
if  Your  Majesty  is  pleased  to  order  that  the  commerce  with 
the  Southern  Sea  continues  to  be  carried  on  through  this 
outlet  (Deste  Desaguadero),  a  great  many  fatigues  and  ex- 
penses, which  are  encountered  and  incurred  at  Nombre  de 
Dios  by  those  coming  from  Spain  or  going  there  from  Peru 
and  other  countries,  would  be  saved ;  all  of  this,  without 
counting  that  the  greatest  part  of  the  Spaniards  who  come  to 
Nombre  de  Dios  and  the  city  of  Panama,  get  sick  and  die. 
And,  as  living  is  so  expensive  there,  those  who  escape  death 
become  so  poor  that  they  scarcely  have  means  to  continue  on 
their  voyage." 


308 


No.  63. 

Organic  Laws  of  Costa  Rica  in  regard  to  limits  with  Nic- 
aragua, 

Decree  of  "Basis  and  Guarantees''''  of  March  8,  1841. 

Article  1. 

Sec.  2.  The  territory  of  the  State  (Costa  Kica)  is  comprised 
within  the  following  limits :  On  the  west,  the  La  Flor  river 
and  the  continuation  of  its  line  along  the  shore  of  the  Lake 
of  Nicaragua  and  the  San  Juan  river,  down  to  the  mouth  of 
the  latter  on  the  Atlantic  Ocean ;  on  the  north,  the  same 
ocean  from  the  mouth  of  the  San  Juan  river  to  the  Escudo 
de  Veragua ;  on  the  east,  from  the  last  named  point  to  the 
Chiriqui  river ;  and  on  the  south,  from  the  last  named  river 
along  the  coast  of  the  Pacific  Ocean,  up  to  the  La  Flor  river. 

Constitution  of  April  10,  1844. 

Article  47.  The  State  recognizes  as  the  limits  of  its  terri- 
tory the  following :  On  the  west,  beginning  at  the  mouth  of 
the  La  Flor  river  on  the  Pacific  Ocean,  continuing  along  the 
course  of  said  river,  the  shore  of  the  Lake  of  Nicaragua  and 
the  San  Juan  river,  until  the  mouth  of  the  latter  on  the  At- 
lantic ;  on  the  north,  the  Atlantic  Ocean  from  the  mouth  of 
the  San  Juan  river  down  to  the  Escudo  de  Veragua ;  on  the 
east,  from  the  last  named  point  to  the  Chiriqui  river  ;  and  on 
the  south,  from  the  mouth  of  this  river  to  the  mouth  of  the 
La  Flor  river.  But  the  border  line  on  the  side  of  the  State 
of  Nicaragua  will  be  finally  settled  when  Costa  Rica  shall  be 
heard  in  the  national  representation,  or  when  in  default  of 
this  hearing  the  affair  is  submitted  to  the  impartial  decision 
of  one  or  more  States  of  the  Republic. 


309 

Constitution  of  February  10,  1847. 

Article  25.  (It  is  exactly  in  the  same  language  as  that 
used  in  the  Constitution  of  1844.) 

Constitution  of  November  30,  1848. 

Article  7.  The  limits  of  the  territory  of  the  Eepublic  are 
those  of  the  uti  possidetis  of  1826. 

Constitution  of  December  2^ ^  1859. 

Article  4.  The  territory  of  the  Eepublic  is  comprised 
within  the  following  limits :  On  the  Nicaraguan  side,  those 
fixed  by  the  treaty  concluded  with  that  Eepublic  on  April 
15,  1858  ;  on  the  side  of  New  Granada,  the  limits  of  the  uti 
possidetis  of  1826,  subject  to  what  may  be  determined  by 
subsequent  treaties  with  that  nation  ;  and  on  the  other  two 
sides  by  the  Atlantic  and  Pacific  Oceans. 

Constitution  of  April  15,  1869. 

Article  3.  The  limits  of  the  territory  are  the  following : 
On  the  north,  the  Atlantic  Ocean ;  on  the  south,  the  Pacific 
Ocean  ;  on  the  side  of  the  United  States  of  Colombia,  those 
of  the  uti  possidetis  of  1826  ;  and  on  the  side  of  Nicaragua, 
those  established  by  the  treaty  of  April  15,  1858. 


310 


No.  64. 

I^aihwe  of  canal  negotiation  with  the  Government  of  the 
United  States,  owing  to  the  fact  that  Nicaragua  refused 
Costa  Rica  intervention  in  it. 

[From  Message  of  the  President  of  the  United  States  to'  the  Congress  of 

the  Nation]. 

Towards  the  close  of  the  last  Administration  negotiations 
were  earnestly  conducted  here  with  Nicaragua  relative  to  a 
ship  canal.  The  result  thereof,  however,  did  not  prove  suc- 
cessful because  the  pretensions  of  the  Nicaraguan  Govern- 
ment were  not  acceptable. 

"  As  the  canal  through  the  Nicaraguan  route  must  proba- 
bly have  to  pass  along  a  portion  of  the  San  Juan  reiver,  over 
which  Costa  Rica  claims  to  have  jurisdiction,  it  was  advisable 
to  celebrate  a  treaty  with  the  latter  Republic  as  well  as  with 
Nicaragua  in  regard  to  this  point.  To  this  end.  the  proper  in- 
structions were  transmitted  to  the  American  Minister  in  Cen- 
tral America;  but  he  has  reported  that  Nicaragua  was  un- 
willing to  negotiate,  especially  in  connection  with  Costa  RicaP 

[From  the  "  Gaceta  de  Nicaragua,"  No.  37,  July  36,  1879.] 


THE   END. 


ERRATA. 


Page. 

Line. 

Reads— 

Shoidd  read— 

15 

9 

If,  as  I  confidently  hope, 

If,  as  I  confidently  hope,  upon 
grounds  which  cause  me  to  en- 
tertain a  profound  conviction, 

31 

14 

Rio  Grande  river. 

Eio  Grande. 

22 

2 

1573. 

1576. 

23 

19 

"  correjidor." 

"  corregidor." 

24 

4th  line  of 
noteB. 

2  Pekalta. 

Pee  ALT  A. 

24 

8th  line  of 
notea. 

^  Archivo. 

"  Archivo. 

25 

5 

Ujarras    (Curredabat), 

Ujarraz,     Curridabat,     Aserri,    la 

Asserri,  la  VilletR, 

Villita, 

25 

16 

Potosi. 

Potosi. 

25 

18 

Diria,  Dinomo. 

Dirid,  Diriomo. 

25 

19 

Naudasmo, 

Nandasmo, 

25 

20 

Nisidiri, 

Nindiri, 

25 

21 

Subtiada. 

Subtiaba. 

33 

8 

1541. 

1561. 

33 

13 

TiEKEA  FiRMA 

TiEBRA  FiRME.                         " 

Pereyra. 

36 

30 

Perera. 

37 

2 

Laens. 

Saenz. 

37 

11 

British  Cyclopaedia. 

Encyclopaedia  Britannica. 

42 

21 

easily  enter  it. 

easily  enter  it.'^ 

42 

1st  line  of 
notes. 

Package. 

File. 

43 

11 

According  to  that  treaty 

According  to  that  treaty,  a  strip  of 

the  right  bank  of  the 

land  three  English  miles  wide, 

river,  from  its  origin 

on  the  right  bank  of  the  river, 

in  the  Lake  up  to  a 

from  its  origin  in  the  Lake,  to  a 

point    three     miles 

point  three  English  miles  from 

from   Castillo  Viejo, 

Castillo  Viejo,  around  which  the 

belongs  to  Nicaragua. 

boundary  describes  an  arc  of  a 
circle,  the  fortress  serving  as  cen- 
tre, which  ends  three  miles  be- 
low, on  the  water's  edge,  belongs 
to  Nicaragua. 

56 

3 

April  18. 

April  15. 

56 

29 

Minister. 

Commissioner. 

61 

9 

ratified. 

approved. 

62 

17 

article  149. 

article  194. 

65 

17 

1853. 

1854. 

65 

25 

the  organic  law  of  1853, 

the  laws  of  organic  character  passed 
by  the  Assembly  of  1854. 

66 

19 

1853. 

1854. 

69 

14 

1853. 

1854. 

76 

11 

1851. 

1857. 

86 

6 

Trevelyn 

Trevelyan 

88 

14 

in  Central  America. 

to  Nicaragua. 

116 

9 

negotiator 

negotiators 

EEBAT  A—  Continued. 


Page. 

Line. 

Reads— 

Should  read— 

124 

22 

928 

298. 

141 

5 

150 

90 

141 
144 

8 
29 

east 
1858 

right 
1856 

157 
158 

17 

'      29 

specia 
Article  IX 

special. 
Article  XIX. 

187 

18 

is  concerned, 

is  concerned,  as  Nicaragua  is  by 
treaties, 

193 

6 

November 

November  8,  1857 

208 

4 

Kafael  Moea 

Juan  Rafael  Mora 

215 

36 

Kafael  Mora 

Juan  Rafael  Mora 

231 

25 

straight  line 

straight  line  established  between  the 
same  limit  and  the  limit  on  the 
noi'thern  side 

235 

4 

Bolarios 

Bolanos 

242 

254 

268 

3 
31 
18 

Sarapaqui 
Nicaragua 
Article  XLIII 

Sarapiqui 
Guatemala 
Article  LIII 

269 

19 

Article  XLVI 

Article  LVI 

271 

13 

northwest 

northeast 

272 

34 

Arsenal 

Arenal 

280 

26 

P^lez 

Peldez 

280 

281 

30 

9 

Suchitepiquez 
Firma  " 

Suchitepequez 
Firme  " 

291 

5 

1886 

1880 

294 

7 

1886 

1880 

297 

34 

Firma  " 

Firme  " 

305 

307 

29 
25 

Chapter  II 
Deste 

Chapter  IV 
deste 

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